Blend360 Terms of Service

1. Blend360 OBLIGATIONS

Blend360 will provide Services to Customer subject to these Terms of Service.

 

2. CUSTOMER OBLIGATIONS

2.1  Customer agrees: (i) comply with applicable law and these Terms of Service, (ii) pay the fees for the Services when due, (iii) cooperate with Blend360’s investigation of service outages and any suspected breach of these Terms of Service, and (iv) ensure your customer account information as it appears in the online control panel is true, accurate, and complete.

2.2  Customer may resell the Services, however, Customer remains responsible for use of the Services by any third party to the same extent as if Customer were using the Services. If Customer installs third party software on the server that is hosted by Blend360, or Blend360 installs the third party software for or at the request of Customer, Customer agrees to the licensing costs at the time of installation and is responsible for any increase in the third party licensing costs thereafter. Customer is solely responsible for (i) obtaining all required licenses, (ii) complying with all applicable licensing requirements set forth by the software manufacturer, and (iii) acceptance of the software manufacturer’s end user license agreement and/or terms and conditions.  Customer agrees to indemnify, defend, and hold harmless Blend360 from and against any claims based on Customer’s failure to comply with the terms set forth in this section.

2.3 Customer is solely responsible for the security and content of all Customer data stored in Blend360’s hosted environment and all such data is and at all times shall, remain Customer’s exclusive property (”Customer Data”).

2.4  Customer is solely responsible for: (i) determining the suitability of the Services in light of the type of Customer Data stored by you or your end-user(s); (ii) the use of Blend360’s hosted environment tool and/or the Services by any of your employees or other user(s) who, either with or without Customer’s authorization, gain access to the hosted environment; and (iii) taking all commercially reasonable steps to mitigate the risks inherent in transmitting Customer Data to and from and while stored on the hosted environment using the Services, including any Customer Data loss or corruption.

2.5  Customer shall encrypt at the application level all data, considered sensitive data, which must be treated as confidential under state or federal law or under Customer’s contractual obligations to others. Sensitive data includes, but is not limited to, Social Security Numbers, financial account numbers, driver’s license numbers, state identification numbers, Protected Health Information (as that term is defined in Title II, Subtitle F of the Health Insurance Portability and Accountability Act, as amended (HIPAA) and regulations promulgated there under) and Nonpublic Personal Information (as that term is defined in Financial Services Modernization Act of 1999 (Gramm-Leach-Bliley) and regulations promulgated there under).

2.6  Customer shall be responsible for maintaining all backups for all Customer Data. In the event Blend360 provides backup assistance on servers, it is provided, without additional charge, as a courtesy (“Courtesy Support”) to Customer. Blend360 has no liability for any lost or corrupted Customer Data resulting from the provision of Courtesy Support.

2.7  Customer is responsible for selecting and securing the appropriate authentication procedures to allow access to Customer’s account. Customer is not authorized to provide account access, passwords, or passphrases for Blend360 technical support to any third party.

2.8  Customer shall only use or allow the use of the Services in compliance with the terms of paragraph 4, (Acceptable Use) of these Terms of Service.

2.9  Customer shall promptly notify Blend360 of any data breach or unauthorized access to Blend360’s network or servers and accounts. Customer will take all commercially reasonable steps to cooperate with Blend360’s investigation and resolution of the reported breach or unauthorized access.

3. ACCEPTABLE USE

3.1  Customer shall use the Services in compliance with all applicable state, provincial, federal, or international laws, statutes or codes, specifically including data protection and privacy laws, as well as laws relating to unsolicited commercial electronic messages.

3.2  Customer is responsible for all acts and omissions of its users in connection with receipt or use of the Services. Customer agrees, and will ensure its users agree, to act responsibly and not use the Services for any illegal or unauthorized purpose including, but not limited to:

a.  Hacking, phishing, spamming, identity theft, financial fraud, e-mail spoofing, virus distribution, network attacks, pirating software, harassment, using malware, spyware, copyrighted infringement under the Digital Millennium Copyright Act (“DMCA”), trademark infringement, sharing illegal software, and any unauthorized use of images, internet accounts or computers or any activity that would violate the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003.

b.  For the purposes of Acceptable Use, the term Spamming includes, but is not limited to: (i) sending unsolicited outbound bulk email regardless of the content; (ii) Junk mail; (iii) unsolicited commercial email; (iv) unsolicited instant messaging; (v) unsolicited mobile phone messaging advertising; (vi) email address cultivating, or any unauthorized collecting of email addresses without prior notification of the email address owner and (vii) mailing lists without closed-loop (“Confirmed Opt-in”), subscription confirmation without retained messages and/or unsubscribe links.

c.  Unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network.

d.  Monitoring data or traffic on any network or system without the express authorization of the owner of the system or network.

e.  Intentionally or recklessly introducing any virus or other contaminating code into the Blend360 hosted environment.

f.  Collecting or using information, including email addresses, screen names or other identifiers, by deceit, (such as, phishing, Internet scamming, password robbery, spidering, and harvesting).

g.  Use of any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting.

h.  Distributing software that covertly gathers or transmits information about a user.

i.  Any activity intended to withhold or cloak identity or contact information, including the omission, deletion, and forgery or misreporting of any transmission or identification information, such as return mailing and IP addresses.

j.  Interference with service to any user of the Blend360 hosted environment including, without limitation, mail bombing, flooding, or deliberate attempts to overload a system and broadcast attacks.

k.  Any action that directly or indirectly results in any of Blend360’s IP space being listed on any abuse database (i.e. Spamhaus).

l.  Conducting any gambling activity in breach of the terms paragraph 4.1.

m.  Distribution or any other use of copyrighted material not owned by Customer or Customer’s end-user.

n.  Any action that is otherwise illegal or solicits conduct that is illegal under laws applicable to you or to Blend360.

o.  Content that incites violence, threatens violence, is excessively violent, or contains harassing content or hate speech.

p.  Any action that results in Customer’s official listing on the Register of Known Spam Operations (ROKSO) database maintained at https://www.spamhaus.org/rokso/

q. Use of public proxies, Internet Relay Chat (IRC), or any application layer protocol when utilized to mask activities defined as malicious within these terms.

3.3  Customer may not use any shared system provided by Blend360 in a way that unnecessarily interferes with the normal operation of the shared system, or that consumes a disproportionate share of the resources of the system. Note: the use of more than 10,000 inodes per GB on any Cloud Sites account may result in a warning, and if no action is taken to reduce the excessive use of inodes, your account may be suspended.

3.4  Customer agrees that we may quarantine or delete any data stored on a shared system if the data is infected with a virus, or is otherwise corrupted, and has the potential to infect or corrupt the system or other customers’ data that is stored on the same system.

4. TERMINATION FOR VIOLATION OF ACCEPTABLE USE

4.1 Blend360 has the right to investigate potential violations of paragraph 4. If Blend360 determines that a breach has occurred, then Blend360 may, in its sole discretion:

a.  Restrict Customer’s and its users’ access to the Services;

b.  Remove or require removal of any offending Content;

c.  Terminate this Agreement for cause;

d.  Exercise any other rights and remedies it may have, at law or in equity.

4.2  Except in an emergency or as may otherwise be required by law, before undertaking the actions in paragraph 4.1, Blend360 will attempt to notify Customer by any reasonably practical means under the circumstances, such as, without limitation, by telephone or e-mail. Customer will promptly notify Blend360 of any event or circumstance related to this Agreement, Customer’s or any user’s use of the Services, or content of which Customer becomes aware, that could lead to a claim or demand against Blend360, and Customer will provide all relevant information relating to such event or circumstance to Blend360 at Blend360’s request.

 

5. TERM AND RENEWAL

5.1  Term. The initial term for each Order begins on the effective date stated in an Order or, if no effective date is stated, the initial term shall be begin on the date Blend360 makes the Services available for Customer’s use (“Effective Date”) and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one (1) month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one (1) month each, unless and until either party gives the other a written notice of non-renewal no less than thirty (30) days prior to the expiration of the initial term (or no less than thirty (30) days prior to the then-current renewal term, as applicable, following the process in 5.2 below.

5.2  Cancellation/Non-Renewal. Customer may give notice of non-renewal or cancellation by way of email or written letter addressed to the Blend360 account representative assigned to the Customer. No other form of cancellation will be effective and the month-to-month agreement for services is automatically renewed each month until such notice of cancellation is provided. Should the Customer’s domain be registered via Blend360’s domain services, name servers and transfers on the domain will remain locked until the Customer’s account is fully settled with Blend360, including any amounts owing for any Blend360 service, including agency services.

6. BILLING AND ACCOUNT SET-UP

6.1  Blend360 will charge Customer and Customer agrees to pay when due the fees for the Services in accordance with its Order. Unless other payment methods have been approved, Blend360 will invoice the Customer monthly, beginning on the Effective Date and continuing on the first day of each successive month until the end of the term. Customer shall pay all applicable taxes arising from Customer’s use of Services or Customer’s payment of amounts due to Blend360 under the Order. Payment methods accepted include cash, cheque, money draft, money order, wire transfer, email money transfer or PayPal. Blend360 reserves the right to charge the Customer for PayPal fees on a following monthly invoice.

6.2  Blend360 may increase fees for the Services provided under an Order upon thirty days advance written notice as follows:

a.  For Services provided on a month-to-month term, Blend360 may, increase fees effective the first day of the next month following the notice period.

b.  For services provided over a term greater than one month, Blend360 may, increase fees for the services provided under an Order as of the first day of the next renewal term beginning more than thirty (30) days from the date following the notice period.

6.3  Blend360 may suspend ALL Services (including any services provided under multiple Orders or other contracts between Blend360 and the Customer, including agency services and domain services) if the Customer fails to make payment. Blend360 may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%).

6.4 In the event Blend360 brings a legal action or engages a collection agency to collect Customer’s unpaid balances, Customer will be liable for payment of all reasonable costs of collection, including legal fees and court costs. Any “credit” that Blend360 may owe Customer, such as a credit for failure to meet a Service Level Agreement, will be applied to fees due from you for Services, and will not be paid to the Customer as a refund.

6.5 Refunds and Guarantees:

a.  Refunds for prepaid Services will be given for full months only in accordance with the terms of the applicable Service Level Agreement.

b.  To be eligible for a refund or claim a SLA guarantee, Notice of cancellation must be given before the month in question begins. Setup fees are not refundable. The cost of domain will be deducted from the money refunded if the user’s domain was registered via Blend360’s domain services.

6.6  If there is a dispute with respect to any portion of an invoice, Customer shall pay the undisputed portion of the fees when due and provide written details specifying the basis of any disputed portion of the invoice.

6.7  Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate.

6.8  Customer authorizes Blend360 to obtain a credit report on Customer at any time during the term of an Order.

 

7. SUSPENSION OF SERVICES

7.1  Blend360 may suspend some or all of the Services without liability to Customer if Customer (i) fails to pay the applicable fees for the Services when due (ii) the Services are being used, have been used, or will, with commercially reasonable certainty, be used in breach of these Terms of Service; (iii) Customer fails to cooperate with an investigation of any suspected breach of the Acceptable Use provisions of these Terms of Service; (iv) Blend360 reasonably believes that the Services have been accessed or utilized in any way by a third party without Customer’s consent, or (v) suspension of services is reasonably necessary to protect Blend360’s hosting environment and/or its customers.

7.2  Blend360 will provide Customer reasonable advance notice of a suspension based on a violation of these Terms of Service and a chance to cure the violation on which the suspension is based, unless Blend360 determines, in its reasonable commercial judgment, that an immediate suspension is necessary to protect Blend360’s network and its customers’ data from an imminent, significant operational, network integrity or security risk.

7.3  Suspensions based on Customer’s breach of these Terms of Service will not relieve Customer’s obligation to pay for the suspended Services during the period of suspension. Any suspension imposed under this paragraph will be terminated upon Customer’s cure of the breach causing the suspension. In the event the Customer is unable to cure the breach within fifteen (15) days from the date on which the breach occurred, the suspension may be treated as a termination for Cause. If Customer’s Services are compromised, then Customer must resolve the cause of the compromise before Blend360 will reinstate service.

7.4  In the case that Service is suspended for Customer’s breach of these Terms of Service Blend360 shall have the right to deny access to, and/or, destroy data stored on the compromised server or account. Blend360 may at its own discretion allow access to a suspended account.

8. TERMINATION FOR CAUSE

8.1  Customer may, upon written notice, terminate an Order for breach of these Terms of Service if Blend360 (i) materially fails to provide the Services as agreed and does not remedy that failure within fifteen (15) days of your written notice describing the failure; (ii) materially fails to meet any other obligation stated in the Order and does not remedy that failure within thirty (30) days of Customer’s written notice describing the failure.

9.2 Blend360 may, upon written notice, terminate an Order if Customer (i) provided materially inaccurate or incomplete information of the purpose of obtaining the Services; (ii) Customer did not have the legal right or authority to enter the Order; (iii) Customer fails to make payment of any invoiced overdue amount within five (5) Business Days of our written notice of delinquency; (iv) Customer made payment arrangements via credit card or other third party, and the third party refuses to honour or reverses Blend360’s charges; (v) Customer is in breach of the Acceptable Use provisions of these Terms of Service and (v) Customer fails to comply with any other obligation stated in the applicable Order and does not remedy the failure within fifteen (15) days of Blend360’s written notice to Customer describing the failure.

9.3  Either party may terminate an Order with immediate effect on written notice if the other party (or we reasonably believe that the other party) (i) is unable to pay its debts; (ii) enters into compulsory or voluntary liquidation; (iii) convenes a meeting of its creditors; (iv) has a receiver or manager or an administrator appointed (or an application is made to the court for the same); or (v) ceases for any reason to carry on business or takes or suffers any similar action which means that it may be unable to pay its debts (each an “Insolvency Event”). Notwithstanding anything to the contrary in the Order, the fees for the Services shall become due immediately upon the occurrence of an Insolvency Event.

9. HOSTING SERVICES/TECHNICAL SUPPORT/LIMITED WARRANTY

9.1  Blend360 technical support services are provided via phone and email. Blend360 offers only Fully Managed support services.

9.2  Blend360 technical support is available only to its Customers.

9.3  Blend360 has no support obligation to any other party.

9.4 Dedicated Server Support: Blend360 provides Basic technical support and maintenance of dedicated servers at the rate specified in Customer’s Order. Additional technical support will be provided, as agreed upon between the parties from time to time.

9.5  Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.

9.6  Blend360 has no obligation to provide security other than as expressly stated in the agreement or order.

9.7  Some of the Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the legal and regulatory requirements applicable to you and your use of the Services, and for selecting and using those Services in a manner that complies with your obligations under the Agreement and the applicable legal and regulatory requirements.

9.8  Blend360 personnel may from time to time recommend third party software or other products and services for your consideration and may also make available to you third-party products or services, including third-party applications through deployment or implementation tools. Blend360 makes no representation or warranty whatsoever regarding products and services that are not purchased from Blend360 or produced/manufactured by Blend360. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.

9.9  Blend360 may periodically run security scans on all Fully-Managed servers.

10. PRODUCT AND SERVICE SALES TERMS

10.1  Customer acknowledges that Blend360 is reselling (and not itself providing) products and services purchased by customer including, without limitation, hardware, software and/or software licenses (“Product(s)”).

10.2  Blend360 shall pass through to Customer, the manufacturer’s warranties for each Product and agrees to facilitate utilization of manufacturer’s product return policies. In no event will Blend360 provide product return or warranty coverage beyond that provided by the manufacturer. Products that are accepted for return are subject to the manufacturer’s applicable restocking fee(s).

10.3  Customer acknowledges the terms and conditions governing the use of such Products shall be solely between Customer and the manufacturer.

10.4  Customer will not use the Products sold by Blend360 for use in life support, life sustaining, nuclear or other applications in which failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. Customer agrees that Blend360 is not liable, in whole or in part, for any claim or damage arising from use of such Products.

10.5  All shipments of Products by Blend360 to Customer are FOB point of shipment. Insurance coverage, transportation costs and all other expenses applicable to shipment from Blend360 to Customer’s identified point of delivery will be the responsibility of the Customer.

10.6  Risk of loss will pass to the Customer upon delivery of the Products to the common carrier (regardless of who pays such common carrier) or the Customer’s representative at Blend360’s point of shipment.

10.7  Customer grants Blend360 a security interest in and to the Products as security for payment in full of the purchase price. Customer authorizes Blend360 to file and/or record any documents it deems necessary to perfect this security interest.

10.8  Customer will obtain all licenses, permits and approvals for the use of the Services or Products, which may be required by any governmental agency, foreign or domestic, having jurisdiction over the transaction.

11. BANDWIDTH PACKAGES

Bandwidth usage for bundled bandwidth packages, for Internet data transfer, will be calculated based upon outgoing bandwidth transfer. Incoming data transfer will not be counted towards your bundled bandwidth usage. Incoming data transfer is free of charge. If your actual data transfer usage exceeds the amount of your bandwidth package you will be charged a bandwidth overage fee in addition to your Bundled Bandwidth Charge. The bandwidth overage fee will be specified in your order.

12. WARRANTY DISCLAIMERS

12.1 Blend360 DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL WARRANTIES, INCLUDING IMPLIED TERMS CONDITIONS OR WARRANTIES RELATING TO SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

12.2 ALL SERVICES PROVIDED BY Blend360 ARE ON AN “AS IS” BASIS AND Blend360 MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO THE PROVISION OF SUCH SERVICES.

13. CONTENT DELIVERY NETWORK

Bandwidth usage for bundled bandwidth packages, for Internet data transfer, will be calculated based upon outgoing bandwidth transfer. Incoming data transfer will not be counted towards your bundled bandwidth usage. Incoming data transfer is free of charge. If your actual data transfer usage exceeds the amount of your bandwidth package you will be charged a bandwidth overage fee in addition to your Bundled Bandwidth Charge. The bandwidth overage fee will be specified in your order

 

14. SCHEDULED MAINTENANCE AND DOWNTIME

14.1  Blend360 will use its commercially reasonable efforts to provide services 24 hours a day, seven days a week.

14.2 Customer acknowledges that from time to time the services may be inaccessible or inoperable for various reasons, including:

a. Periodic maintenance procedures or upgrades (“Scheduled Downtime”)

b. Service malfunctions, and causes beyond Blend360’s control or which are not reasonably foreseeable by Blend360, including the interruption or failure of telecommunications or digital transmission links.

c. Hostile network attacks, or network congestion or other failures.

14.3  Blend360 is not responsible for any downtime caused by conditions specified in 15.2 or due to Customer’s actions that breach any term of this Order.

15. INDEMNITY

15.1  Customer agrees to indemnify and hold Blend360, and each of its directors, officers, employees, shareholders and agents (each an “Indemnified Party”) harmless from any and all damages, liabilities, fines, penalties, losses and/or claims of whatsoever kind or nature, arising from the Customer’s use of Blend360’s hosted environment or the Services.

15.2  Blend360 may from time to time, at the request of the Customer, be enlisted to perform server administration tasks on Customer hardware, which is co-located at a Blend360 facility (“Remote Hands Service”). Customer agrees and holds Blend360 harmless against any damage caused to Customer in the performance of Remote Hands Service.

 

16. EXPORT

Customer represents and warrants:

a.  That Customer is not located in or a national of any country that is embargoed or restricted under export regulations or are otherwise a person or entity to which Blend360 is legally prohibited from providing the Services.

b.  Customer will not possess, use, import, export or resell (and shall not permit the possession, use, importation, exportation, or resale of) the Services or any Information or technical data provided by Blend360 under these Terms of Service or any Order or agreement in which they are incorporated in any manner which would cause Blend360 to breach any applicable export control laws, rules, or regulations.

c.  Customer represents, and warrants without limitation, that it will not provide or facilitate administrative access to or permit use of the Services by any persons (including any natural person, government or private entity or other form of body corporate) that is located in or is a national of any country that is embargoed or highly restricted under applicable export laws, rules or regulations.

17. PROMOTIONAL USE

Customer grants Blend360 a non-transferable, non-exclusive license to utilize Customer trademarks and logos for Blend360 promotional materials.

 

18. OWNERSHIP OF SERVICES/INTELLECTUAL PROPERTY

18.1  No work or professional services performed and/or provided by Blend360 under this Order shall be deemed to be “Work For Hire” and shall remain at all times the sole property of Blend360. For so long as Customer is not in default on any obligation under these Terms and Conditions, Blend360 grants Customer a non-exclusive, non-transferable license to use the work product of such services. Such license terminates upon the termination of the applicable Order or agreement pursuant to which they were performed.

18.2  All software that is provided to Customer is subject to these Terms of Service and any Order or agreement in which they are incorporated including software that we may authorize you to install on devices located outside of our data center. Customer shall not use any software provided by Blend360 after the expiration or termination of these Terms of Service or any Order or agreement in which they are incorporated.

18.3  Customer shall not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide you.

18.4  Unless permitted by the terms of an open source software license, Customer may not reverse engineer, decompile or disassemble any software we provide for Customer’s use except and to the extent that Customer is expressly permitted by applicable law to do so and then following at a minimum of ten (10) days’ advance written notice to Blend360. Any additional restrictions, which may apply to software we utilize in the performance of the Services, will be specified in the applicable Order.

18.5  Where specifically prohibited, Customer shall not mix software license ownership when utilizing Blend360 services. In such cases, where the Customer provides all licensed products, including the OS, all licenses must be provided by the Customer and may not be mixed with Blend360 licensed products. Requirements vary by software vendor.

 

19.  LIMITATION OF DAMAGES AND LIABILITY

EXCEPT AS OTHERWISE PROVIDED IN AN APPLICABLE SERVICE LEVEL AGREEMENT, Blend360’S LIABILITY TO CUSTOMER SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCT OR SERVICE THAT IS THE BASIS FOR THE CLAIM. FOR REMOTE MANAGEMENT OF CUSTOMER’S ENVIRONMENT AND/OR Blend360 CLOUD SERVICES, THE TOTAL LIABILITY OF Blend360 FOR THE PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS SHALL NOT EXCEED AN AMOUNT EQUAL TO THE MOST RECENT SIX MONTH’S BASE CHARGE FOR THE SERVICE (S) THAT IS THE BASIS FOR THE PARTICULAR CLAIM. Blend360 WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, LOST OR DAMAGED DATA, AND LOSS OF BUSINESS OPPORTUNITY), HOWEVER CAUSED, ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT OR SERVICE, OR IN ANY WAY CONNECTED TO THESE TERMS OF SALE, EVEN IF Blend360 HAS BEEN ADVISED OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE, INFRINGEMENT OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, CONTRIBUTION, OR OTHERWISE.

20.  NO WAIVER

The failure of either party to insist upon strict performance of any of the provisions of these Terms of Service will not be deemed a waiver of any breach or default. The remedies provided to Blend360 hereunder are not a waiver of the remedies of Blend360 under applicable law.

21.  LIMITATION OF ACTION

The Customer may bring no action, regardless of form, arising out of or relating to an Order, more than three (3) months from the date on which the cause of action accrues. The parties expressly agree that this part, as to the Customer only, supplants and replaces any and all periods of limitation otherwise provided for by law and applicable hereto. All periods of limitation otherwise applicable to actions by Blend360 remain as provided by law.

22.  DISPUTE RESOLUTION

All disputes other than small claims under $25,000 between Blend360 and a Customer shall be determined by a final and binding arbitration pursuant to current commercial arbitration rules. The arbitrator shall decide any dispute in accordance with Ontario law, without the application of choice of law principles. Each party shall bear its own expenses and legal fees for the arbitration. The arbitration shall be conducted in Toronto, Ontario, Canada, unless both parties agree in writing to a different location. The arbitration award is enforceable as a judgment of any court having proper jurisdiction.

23.  CONFIDENTIAL INFORMATION

Information designated as confidential by either Blend360 or Customer, whether before or after the effective date of these Terms of Service shall be held in strict confidence and used only for purposes of these Terms of Service. Except as required by law, no Confidential Information shall be disclosed without the prior written consent of the party designating the information as confidential. If either party is legally required to disclose any confidential information of the other party, the party so required shall notify the other party immediately and shall cooperate in seeking a reasonable protective order. This Section shall not apply to information, which is (i) in the public domain, (ii) already known to the recipient, (iii) developed independently or (iv) received from a third party without similar restriction and without breach of this or a similar agreement.

 

24.  SEVERABILITY

If any provision of these Terms of Service is unenforceable as a matter of law, all other provisions will remain in effect.

 

25.  EXCUSABLE DELAY

Blend360 will not be liable for any delay or failure of performance whatsoever due to acts of God, earthquakes, shortage of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics or other circumstances beyond Blend360’s control.

26. BINDING TERMS AND CONDITIONS

26.1  These Terms and Conditions are binding for any Customer accepting Blend360’s products or services. In the event Blend360 revises the Terms of Service on its website, those revisions will be effective as of the date they were published to the Blend360agency.com website.

26.2  By opening an account, or by the use of any Blend360 service, the Customer agrees to be bound by these Terms and Conditions.

27. NO PARTNERSHIP

The relationship between the parties is that of independent contractors and not business partners. Neither party is the agent for the other; neither party has the right to bind the other to any agreement with a third party.

28.  ASSIGNMENT AND SUBCONTRACTING

Neither party may assign the an Order in whole or in part without the prior written consent of the other party, provided however, Blend360 may assign an Order in whole or in part to an affiliate with sufficient financial standing in order to meet its obligations under the Order or as part of a bona fide corporate reorganization or a sale of its business, and we may transfer your Confidential Information as part of any such transaction. Blend360 may use affiliates and third party service providers to perform all or any part of the Services, but Blend360 remains responsible to you under the Order for Services performed by its Affiliates and third party service providers to the same extent as if Blend360 performed the Services.