Terms of Service
This Terms of Service (“ToS”) is effective between Blitz Marketing Company, LLC dba Blitz Media Company, including its affiliates, subsidiaries, representatives, and authorized agents (“Blitz” or “Company”) and its Customer, including its affiliates, subsidiaries, representatives, officers, and its authorized agents. Blitz or Customer may be referred to herein collectively as the “Parties” and individually as a “Party.”
1. Services
(a) Services. This ToS may be implemented through one or more Statements of Work (each an “SOW” and collectively “SOWs”). Blitz will perform services and create and provide certain deliverables and Work Product (as defined in Section 4 hereof) as more particularly described in applicable SOW which will be entered into periodically and, upon execution by the Parties, will be incorporated and made part of this ToS (the “Services”). In the event of a conflict between the terms of an SOW and the terms of this ToS, the terms of this ToS shall supersede and control as to such conflict. No obligation to either provide or pay for any services shall be incurred by any Party until such time that an SOW has been executed by authorized representatives of all Parties. The existence of this ToS shall not be construed as imposing any obligation upon Blitz to enter into any SOW or to request any services from Blitz. Failure to perform the duties and obligations as required under this ToS or in an SOW shall constitute a material breach of this ToS.
(b) Modification of Services, Change Orders. The Parties acknowledge and agree that during the term of the ToS the Services, as set forth in an SOW, may be modified and/or expanded periodically by the Parties through a Change Order (“Change Order”). No changes to the Services will be authorized by the Blitz and Customer have no obligation to pay for any additional or modification, until a Change Order has been agreed upon and signed by an authorized representative of all Parties.
2. Fees, Royalty, Taxes.
(a) Fees and Payment. As full and complete compensation for the services, Blitz shall be paid the fees (the “Fees”) as specified in the applicable SOW. If either Party determines that it has any inquiries, problems or believes there are errors or discrepancies with respect to any amounts due under this ToS, it shall give the other Party a written notice thereof within fifteen (15) calendar days from the date on which the invoice was received.
(b) Taxes. Each Party is solely responsible for paying any due taxes, including estimated taxes, incurred because of any Fees or others paid under this ToS. This includes, but is not limited to, any federal, state, or local income taxes, social security or unemployment tax, or any other taxes.
3. Independent Contractor. Blitz and its employees, personnel, and permitted contractors performing any Services on behalf of Customer under this ToS are independent contractors and not employees of the Customer. Each Party will be responsible for any applicable payment and withholdings of any salary, benefits, incentives, and any other compensation or taxes relevant to its personnel. Nothing in this ToS, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents.
4. Ownership of Work Product.
(a) Non-Work for Hire. All Parties understands, agrees, and acknowledges that this is not a work-for-hire ToS. The copyright in all deliverables created hereunder for Customer (the “Work Product”) shall belong to the Customer. All intellectual property rights of any Party in all pre-existing works and derivative works of such pre-existing works and other deliverables and developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the Services hereunder are and shall remain the sole and absolute property of such Party. This ToS does not grant any Party any license to the other Party’s intellectual property rights, unless as agreed to by such Parties in a separate writing.
(b) Original Authorship and Right to Use Third-Party Materials. Blitz represents and warrants to Customer that: (a) services from third party vendors, independent contractors, or other service providers may be sought in order for Company to fully perform its obligations under the ToS; (b) all Work Product produced pursuant to this ToS shall not infringe any other third party’s intellectual property rights, and will not incorporate or be based on any Third-Party Materials (as defined herein); (c) to the extent that any Third-Party Materials may be contained in the Work Product that Blitz intends to deliver to Customer, Customer will be entitled in its sole discretion to accept or reject the use of such Third-Party Materials and Work Product; and (d) Blitz will have the legal right and authority to use and license at its sole discretion such Third-Party Materials to Customer in accordance with this ToS, as applicable. As used herein, “Third-Party Materials” means works, inventions, developments, discoveries, or information belonging to any third party. Blitz hereby grants to Customer an irrevocable, nonexclusive, worldwide, royalty-free license to use, reproduce, and distribute (internally and externally) copies of, prepare derivative works based upon, and otherwise commercially exploit any Third-Party Materials which may be contained in the Work Product.
5. Confidential Information. Each Party acknowledges that by reason of its relationship to the other Party hereunder, either Party may disclose or provide access (the “Disclosing Party”) to the other Party (the “Receiving Party”) certain Confidential Information.
(a) Definition. “Confidential Information” shall mean (1) information concerning the Party’s products, business and operations including, but not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual ToS, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property, of the Disclosing Party and its affiliates that may be at any time furnished, communicated or delivered to the Receiving Party, whether in oral, tangible, electronic or other form; (2) the terms of any ToS, including this ToS, and the discussions, negotiations and proposals related to any ToS between the Parties hereto; (3) information acquired during any tours of or while present at the Disclosing Party’s facilities; and (4) all other non-public information provided by the Disclosing Party hereunder. It is intended that information as described in this section is deemed Confidential Information whether it is identified or labeled as such. All Confidential Information shall remain the exclusive property of the Disclosing Party.
(b) Use of Confidential Information, Standard of Care. Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees who have a need-to-know such Confidential Information to fulfill the business affairs and transactions between the Parties contemplated by this ToS and who are under confidentiality obligations no less restrictive than this ToS. Receiving Party shall always remain responsible for breaches of this ToS arising from the acts of its employees. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this ToS and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party. No Confidential Information furnished to the Receiving Party shall be duplicated or copied except as may be strictly necessary to effectuate the purpose of this ToS.
(c) Exceptions, Require Disclosures. Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees who have a need-to-know such Confidential Information to fulfill the business affairs and transactions between the Parties contemplated by this ToS and who are under confidentiality obligations no less restrictive than this ToS. Receiving Party shall always remain responsible for breaches of this ToS arising from the acts of its employees. Receiving Party shall use the same degree of care as it uses with respect to its own similar information, but no less than a reasonable degree of care, to protect the Confidential Information from any unauthorized use, disclosure, dissemination, or publication. Receiving Party shall only use the Confidential Information in furtherance of its performance of its obligations under this ToS and agrees not to use the Disclosing Party’s Confidential Information for any other purpose or for the benefit of any third party. No Confidential Information furnished to the Receiving Party shall be duplicated or copied except as may be strictly necessary to effectuate the purpose of this ToS.
(d) Unauthorized Use or Disclosure of Confidential Information; Equitable Relief. In the event Receiving Party discovers that any Confidential Information has been used, disseminated or accessed in violation of this ToS, it will immediately notify the Disclosing Party; take all commercially reasonable actions available to minimize the impact of the use, dissemination or publication; and take all necessary steps to prevent any further breach of this ToS. Receiving Party agrees and acknowledges that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this ToS, in addition to all other remedies available in law or at equity.
(e) Return of Confidential Information, Survival. Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this ToS. Notwithstanding any expiration or termination of this ToS, Receiving Party’s obligation to protect the Confidential Information pursuant to this Section will survive for five (5) years after the expiration or earlier termination of this ToS.
(f) HIPAA Compliance. Company will comply with all applicable privacy and data protection laws, including without limitation any applicable international data transfer restrictions, local registration and permitting requirements, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and regulations promulgated thereunder at 45 C.F.R. Parts 160 and 164 (the “Privacy Regulations” and the “Security Regulations”), and implementing regulations or guidance, and any applicable state law or regulation.
6. Indemnification. Blitz shall defend, indemnify and hold Customer, their affiliates, and their respective officers, directors, shareholders, employees and agents harmless from and against any claims, actions, demands, lawsuits, losses, damages, costs, expenses, judgments, fines, penalties, and liabilities (including reasonable attorney’s fees and courts costs) incurred in connection with any third-party demands, assertions, claims, suits, actions or other proceedings: (1) alleging the services or work product violate any applicable law, rule, regulation or judicial order; (2) arising from the acts or omissions of Blitz or its employees, agents or permitted contractors in connection with the performance of the services; (3) alleging that the Services or Work Product or any use of the services or work product infringes any third-party’s patent, trade secret, copyright, trademark or other intellectual property right or misappropriates a third-party’s confidential information; or (4) arising from or relating to the services or the work product or any third-party materials utilized in the performance of the services (in each case a “Claim”), except to the extent such Claim is caused by Customer’s willful misconduct or gross negligence.
(a) Procedures for Indemnification. Promptly after receipt of any written Claim or notice of any action giving rise to a Claim for indemnification, Customer will provide Blitz with written notice of the Claim or action. Customer will provide Blitz with reasonable cooperation and assistance in the defense or settlement of any Claim, and grant Blitz control over the defense and settlement of the Claim. However, Customer shall be entitled to participate in the defense of the Claim and to employ counsel at its own expense to assist in the handling of the claim, and Blitz will ensure that its counsel reasonably cooperates with and permits participation by Customer’s counsel. Blitz will not consent to any judgment, attachment or lien or any other act adverse to the interests of the Customer without Customer’s prior written consent. If Blitz fails to assume the defense of a Claim or Customer reasonably determines that Blitz failed to diligently assume and maintain a prompt and vigorous defense of any Claim, Customer may assume sole control of the defense of any Claim and all related settlement negotiations with counsel of its own choosing, and Blitz will pay all costs and expenses (including reasonable attorneys’ fees) incurred by Customer in such defense within thirty (30) days of each Customer’s written requests.
7. Non-Solicitation. Customer agrees that during the term of this ToS and for five (5) years thereafter, it will not, directly, or indirectly, solicit or induce any employee, service provider, or independent contractor of Blitz that has interacted with Customer or has been involved, directly or indirectly, in the performance, review and/or acceptance of the services, to consider or accept employment with Customer. Customer is not prohibited from responding to or hiring employees, service providers, or independent contractors of Blitz who inquire about employment with Customer on their own accord or in response to a public advertisement or employment solicitation in general.
8. Representation and Warranties, Disclaimers.
(a) General. Each Party represents and warrants that: (a) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this ToS, to perform its obligations and to grant the rights hereunder; (c) this ToS is legally binding upon it and enforceable in accordance with its terms; (d) the execution, delivery and performance of this ToS does not and will not conflict with any ToS, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound; and (e) it will comply with all applicable laws.
(b) Compliance with Laws, Permits and Licenses. All Parties agrees to operate in full compliance with all governmental laws, regulations, and requirements applicable to its performance of this ToS and the Services to be provided hereunder. Either Party shall obtain and maintain in force, at its own expense, all licenses, permits, insurance, and approvals required or necessary for its performance under this ToS. Either Party shall notify the other Party in the event it knows or has reason to believe that any act or omission from acting required by or contemplated by this ToS violates any applicable law, rule, or regulation, whether civil or criminal.
(c) Compliance with Applicable Rules and Procedures. Blitz shall comply with applicable rules and procedures as dictated by the Customer, so long as such rules and procedure is made available to the Blitz. Failure to comply with the applicable rules and procedure shall constitute a material breach of this ToS.
(d) Representation and Warranties of Blitz. Blitz hereby represents and warrants the following:
(i) that it is qualified to perform the Services and such Services shall be performed in a professional and workmanlike manner in strict accordance with all material respects with the terms of this ToS and the specifications, requirements and time schedules of any applicable SOW, and in accordance with any applicable commercial standards generally observed in Blitz’s industry; and
(ii) its performance of the Services will not violate any proprietary rights of any third parties including, without limitation, patents, copyrights, or trade secrets.
(e) LIMITATION OF LIABILITY, ACTIONS. EXCEPT FOR THE PARTIES’ CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5 OF THIS TOS AND INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 OF THIS TOS, IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS TOS TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUBJECT TO THE CUSTOMER’S OBLIGATION TO PAY THE FEES TO THE BLITZ, EACH PARTY’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THIS TOS SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY THE CUSTOMER TO THE BLITZ UNDER THIS TOS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS TOS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TOOR ARISING OUT OF THIS TOS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
(f) WARRANTY. The services to be performed hereunder shall be in the form of professional services, operations support, or business strategic advise. Blitz warrants that that the services will be performed by qualified personnel in a professional and workmanlike manner in accordance with the generally accepted industry standards and practices. Blitz shall comply with all statutes, ordinances, regulations, laws of all international, federal, state, county, municipal or local governments, and rules, policies, and procedures applicable to performing the Services hereunder.
LIMITATION OF WARRANTY. THE WARRANTY SET FORTH IN THIS SECTION 8 IS EXCLUSIVE AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THIS TOS, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. BLITZ DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR AGAINST INFRINGEMENT. CUSTOMER SHALL NOT BE LIABLE FOR ANY SERVICES OR WORK PRODUCT OR DELIVERABLES PROVIDED BY BLITZ DURING THE TERM OF THIS TOS, PURSUANT TO ANY SOW OR OTHERWISE. THE EXCLUSIVE REMEDY FOR BREACH OF THIS WARRANTY IS TERMINATION AS SET FORTH UNDER SECTION 10 OF THIS TOS.
9. Term. This ToS shall have an initial term as provided in the SOW. Should SOW is silent on the term, this Section 9 shall take effect pursuant to the following terms. This ToS shall have an initial term of one (1) year or upon completion of the services, whichever is earlier (the “Initial Term”) from the commencement of services provided under applicable SOW (the “Initial Term”), unless earlier terminated in accordance with the provisions of Section 10, Termination, of this ToS. After the Initial Term, this ToS shall be automatically renewed for additional one-month terms (each a “Renewal Term”), unless not less than fifteen (15) days prior to the end of the Initial Term or any Renewal Term, either Party notifies the other of its intent not to renew the ToS. The Initial Term and Renewal Terms, if any, are collectively referred to herein as the “Term.” Notwithstanding the provisions provided hereunder, Blitz’s completion of the provision of Services under the SOW or this ToS shall terminate this ToS.
10. Termination.
(a) Termination for Breach. Either Party may terminate this ToS at any time in the event of a breach by the other Party of a material covenant, commitment or obligation under this ToS that remains uncured for fifteen (15) days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
(b) Termination for Convenience. Either Party may terminate this ToS, at any time with or without cause by giving thirty (30) days prior written notice.
(c) Termination for Bankruptcy, Insolvency, or Financial Insecurity. Either Party may terminate this ToS immediately at its option upon written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This ToS shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this ToS pursuant to 11 U.S.C. §365.
(d) Obligations upon Termination. Termination of this ToS for any reason shall not discharge either Party’s liability for obligations incurred hereunder and amounts unpaid at the time of such termination, unless disputed or settled to by Parties hereunder.
(i) Survival, Effect of Termination. Upon termination or expiration of any SOW or this ToS, Receiving Party shall return the Disclosing Party’s Confidential Information that is in its possession. Notwithstanding any other provisions hereunder, subject to Section 19 of this ToS, all corresponding rights, obligations, and licenses of the Parties shall cease except all obligations and liabilities that accrued prior to the effective date of expiration or termination shall survive and Blitz shall cease using, destroy, and remove from all computers, hard drives, networks, and other storage media owned and controlled by the Blitz, all copies of any Confidential Information. Termination of this ToS shall terminate all outstanding SOW.
11. Force Majeure. Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under this ToS if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, pandemics, epidemics, local disease outbreaks, public health emergencies, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of this ToS, for so long as such force majeure event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence. Should a Party experience a force majeure event, it shall take reasonable measures to mitigate any impact that such event has on its performance of this ToS, and shall take all reasonable steps to perform despite such event. Nevertheless, if Blitz’s performance is delayed over thirty (30) days, Customer may terminate this ToS.
12. Publicity. Unless otherwise agreed to in writing by Customer, Blitz is authorized to disclose that the Customer is a client of Blitz and will use the name, mark, logo, or trade name owned or used by the Customer for Blitz’s marketing purposes and to fulfill its obligations under this ToS and, or SOW.
13. Governing Law and Venue. This ToS will be governed by and interpreted in accordance with the laws of the State of Arizona, without giving effect to the principles of conflicts of law of such state. The Parties hereby agree that any action arising out of this ToS will be brought solely in any state or federal court located in Maricopa County, State of Arizona. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court.
14. Dispute Resolution. To ensure the timely and economical resolution of disputes that arise in connection or out of this ToS, all Parties agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, or interpretation of this ToS, Services, or termination of Services, shall be resolved to the fullest extent permitted by law by final, binding, and confidential arbitration, by a single arbitrator, in Maricopa County, State of Arizona, conducted by Judicial Arbitration and Mediation Services, Inc. (“JAMS”) under the applicable JAMS breach of contract rules. By agreeing to this arbitration procedure, all Parties waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to award any or all remedies that either Party would be entitled to seek in a court of law. The claiming Party shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required if the dispute were decided in a court of law. Nothing in this ToS is intended to prevent either Parties from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Notwithstanding the foregoing, each Party has the right to resolve any issue or dispute amicably by mutual discussion instead of arbitration.
(a) Waiver of Jury Trial. EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS TOS, THE SECURITIES OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
15. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this ToS or any rights under this ToS, the prevailing Party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.
16. Assignment. Either Party may assign and transfer their rights and obligations under this ToS upon written notice to the other Party.
17. Severability. If any provision or portion of this ToS shall be rendered by applicable law or held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
18. Headings, Construction. The headings and captions appearing in this ToS have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This ToS is the result of negotiations between the Parties and their counsel. Accordingly, this ToS shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
19. Survival. Each term and provision of this ToS that should by its sense and context survive any termination or expiration of this ToS, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this ToS.
20. Rights Cumulative. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
21. Counterparts. This ToS may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page delivered via facsimile transmission or electronic signature shall be deemed as effective as an original executed signature page.
22. Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this ToS on behalf of the respective Parties are authorized to execute such an ToS. No further proof of authorization shall be required.
23. Notices. All notices or other communications required under this ToS shall be in writing and shall be deemed effective when received and made in writing by either (i) hand delivery, (ii) registered mail, (iii) certified mail, return receipt requested, or (iv) electronic mail, addressed to the Party to be notified at the following address or to such other address as such Party shall specify by like notice hereunder:
Blitz:
3843 E. Powell Way, Gilbert, AZ. 85298
Attention: Compliance Department
Customer:
as provided in the SOW
24. Waiver. No waiver of any term or right in this ToS shall be effective unless in writing, signed by an authorized representative of the waiving Party. The failure of either Party to enforce any provision of this ToS shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision or any other provision of this ToS thereafter.
25. Entire ToS, Modification. This ToS, SOW, and any exhibits as applicable, is the entire ToS between the Parties with respect to the subject matter hereof and supersedes any prior ToS or communications between the Parties, whether written, oral, electronic, or otherwise. No change, modification, amendment, or addition of or to this ToS or any part thereof shall be valid unless in writing and signed by authorized representatives of the Parties.
