Terms and Conditions
This Service Agreement (the “Agreement”) is made and effective as of ___________, 2018 by and between Computica, Inc., a Virginia corporation (“Computica,” “we” or “us”) and _________________ (the “Customer,” “You,” “Your”), with respect to the Total Party Planner web site and service. Computica and Customer may be referred to individually as a “Party” or collectively as the “Parties.”
Total Party Planner Web catering & banquet management software (referred hereinafter as “Total Party Planner Web”, Computica, “our”, “we” and/or “us”) offers business customers the ability (the “Service”) to manage their catering and/or banquet management and/or other business via the Internet on a web site (the “Site”) hosted and maintained by Computica. The Service is solely for your own use and may not be resold, assigned, or redistributed to any person or entity.
You must have access to the Internet to use the Service, and you (and not Computica, Inc) are solely responsible for, without limitation, obtaining and maintaining all telecommunications, broadband, and computer hardware, equipment, and services needed to access and use the Service, and paying all charges related thereto. You are responsible for ensuring that your equipment is compatible with the Service.
No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof, except as expressly stated herein with regard to a Providing Party. “Providing Party” for purposes of this Agreement, is defined as Computica, Customer, and any other party that provides non-public information to a party hereunder or enters such information into the Service. Should you enter into any third party agreements affecting or relating to your use of the Service, you agree that you will continue to be bound by these terms and conditions, regardless of any outside commitments you may have. These terms of service apply to, and only to, the Account Owner as identified below. In the event that you wish to transfer ownership of your account to another party, you must follow the cancellation policy procedures outlined in section 3 of this agreement. We must receive in writing your wish to transfer ownership of the account and the new customer must sign the terms of service. We reserve the right to update the account billing to the most current retail prices listed on our website should the account change ownership.
Billing. Account payments are due and will be payable according to your subscription period as stated below. All accounts will be automatically renewed unless terminated prior to such renewal per the terms of this Agreement.
Monthly: 6 month initial service commitment, paid on a monthly basis, renewed monthly
One Year: 12 months’ Service, paid in advance, renewed for successive 12-month periods
Two Years: 24 months’ Service and payment obligation, paid annually in advance, renewed at the end of the 24 months for additional 12-month periods
Three Years: 36 months’ Service and payment obligation, paid annually in advance, renewed at the end of the 36 months for additional 12-month periods
Upon each renewal, for every subscription period, payments will either be charged to the credit card on file or payable upon receipt of Computica’s invoice. If paying by credit card, this Agreement MUST be signed by the credit card holder. No exceptions can be permitted.
Additional Terms, Available Funds. We reserve the absolute right, at our sole discretion, to terminate our provision of the Service to you if funds are not available or if payments are reversed, challenged, charged back, or if an expired credit card is not timely replaced in our system for payment of your obligations to Computica Your first payment will be due upon execution of this Agreement. Thereafter, payment will be due not later than the first day of the contract term billing period for the subsequent term of Service. Contract term is determined by the payment plan specified during enrollment procedure. If Computica does not receive payment at the scheduled billing time period, Customer agrees to pay Computica all amounts due upon demand. Customer agrees to pay all reasonable attorney and collection fees arising from Computica’s efforts to collect any past due amounts from Customer.
Continuous Service Membership. Subscription membership to the Service is on a continuous service basis until terminated by either party. This means that once you have become a subscribing member, your membership will be automatically renewed and you will be charged based on the subscription payment plan in accordance with the term length of monthly or annual. Full payment is due at the time of renewal. If paying by credit card, the credit card will automatically process for the renewal period on the day of renewal. If paying by check for an annual subscription, the check is due on, or before, the day of renewal.
Price Increase. A 7% max price increase may be applied at each annual interval of a customer’s term. The determination of a price increase is at the sole discretion of Computica Should a price increase apply, Computica will notify Customer 30 days in advance of term ending. Computica Inc. will automatically apply any price increase to Customers billing for another term length. Changing from a yearly billing plan to a monthly billing plan will subject customer to pay current retail price at the monthly price listed on the website.
Promotions/Discounts. Computica, Inc. reserves the right to remove any and all promotional rates, discounts, or specials at the end of the agreed upon terms.
Late Fee. A $25.00 late fee may be assessed for any failed credit card transaction or returned check. If a Customer is setup for credit card billing, Computica reserves the right to run Customers card up to three (3) additional times to attempt to receive payment without Customer approval. Accounts may be temporarily deactivated immediately following a failed payment, until payment is received. On a monthly payment plan, billing will continue to recur each month, even in instances of account deactivation. After 3 consecutive months of non-payment, we reserve the right to permanently cancel the account without Customer’s request or approval. If a Customer wishes to have service reconnected, a $199.00 reactivation fee will be added to the outstanding balance as a condition of reconnection. Reconnection to the service will not be granted until the Customers outstanding balance is paid in full. In addition, Computica reserves the right to require Customers on a monthly billing plan with a history of delinquency to pay for their service on a yearly basis instead of a monthly basis. Computica will exercise its best efforts to maintain, but does not guarantee that it will maintain, Customer data so that it will be available to Customer upon reconnection.
Setup Fee. The setup fee, also referred to as the activation fee, must be paid in full at the time of purchase. In certain cases the setup fee may be financed over a six month period. In the case of an account cancellation prior to the end of the six month finance period, the full balance of the setup fee will be billed to the client. That remaining balance must be paid in full at the time of cancellation.
Cancellations, Refunds and Termination. Initials: ______________
This Agreement shall be effective from the date first stated herein, and shall continue in full effect through the lifetime of your service. Your subscription shall be automatically renewed on each anniversary thereof for an additional term of one year. Price increase policies are noted in the Billing section.
You may cancel your Service under this Agreement by written notice received via email at firstname.lastname@example.org at least 30 days prior to the period renewal date applicable to your account (see part 2(A) above). In order to be effective, notice must be sent by the Account Owner or Administrator, as defined below. Either party may terminate this Agreement in the event of a material breach of this Agreement that is not cured within 30 days of written notice to the other party specifying the nature and extent of any such breach in detail. Computica shall have no obligation to maintain any account data after the date of termination. If reactivating an account or starting a new Total Party Planner account in the future, then-current retail pricing and a new account activation fee will apply.
For a period of 14 days following the date of purchase you may cancel the service for a refund of the subscription rate. The account activation fee and any additional options are non-refundable. After 14 days, you will not receive a refund for any charges or fees already paid associated with the Service. Refund and cancellation requests must be in writing, from the Account Owner or Administrator.
In the event of any termination pursuant to this Section, Computica’s obligation to provide the Service to you will cease immediately.
Member Account, Password and Security. You will receive a username and password for each user and login designation. You agree that no system of data security or privacy is perfect, and that you are responsible for maintaining the confidentiality of the usernames, passwords and account. You are fully responsible for all activities that occur under your usernames, passwords or account. In order to help us protect the security of your account and your data, you agree to:
immediately notify Computica of any unauthorized use of your usernames, passwords or account or any other breach of security, and
ensure that you (and each user) logout from your account at the end of each session.
Computica, Inc cannot and will not be liable for any loss or damage arising from your failure to comply with this Section or from any loss or damage arising from the actions of any third party.
Account Contacts & Users. The following roles will be used to define rights and permissions within each customer account:
Account Owner(s): The account owner is the ultimate owner of the subscription, as designated by you, the Customer. They have the ultimate authority to make final decisions on account details including, but not limited to, transfer of account ownership, data access, plan and billing changes, account purchases, usernames and passwords, user permissions, active, inactive, and administrator status of users.
Payment Person/Entity: The party responsible for payment of the Service. The payment person is the party named on the billing method and must sign this Terms of Service (i.e. when paying by credit card, the name on the credit card must be the signer of the terms of service). May also be the Account Owner.
Account Administrator(s): The Administrator user has full access to the entire program and also has the authority to update any other users information, including, but not limited to, passwords, permissions, first and last name, email address, active and inactive status, and administrator status. The Account Administrator may also purchase additional users for the account.
Account Users: Any person designated to use the Service and granted access by the Administrator.
During the initial setup, we will provide username and password details. These details will be sent to our contact at the time of setup, along with the account owner named on this terms of service. Initial administrator status will be designated by the contact person from your company at time of setup. After the initial setup, it is up to you, the Customer, to manage any user details, including, but not limited to, username and password changes, active and inactive user status, administrator status, and email addresses and name details associated to the usernames.
We recommend that you, and all other users from your organization, sign up for user accounts by providing your corporate contact information. In particular, we recommend that you use your corporate email address. You agree to: a) provide true, accurate, current and complete information about yourself as prompted by the sign up process; and b) maintain and promptly update the information provided during sign up to keep it true, accurate, current, and complete. If you provide any information that is untrue, inaccurate, outdated, or incomplete, or if Computica, Inc has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, Computica, Inc may terminate your user account and refuse current or future use of any or all of the Services.
Computica, Inc will hold all data private but makes no guarantee of complete data security. It cannot, and will not, release any information to parties outside of the Account Owner, Administrator, and active users. Third party companies that the customer may be in agreement with will not be permitted access to the data unless specified by the Account Owner and granted access by the Administrator.
We will take reasonable steps to verify the identity of an Account Owner or Administrator contacting us to make changes to your account, but will not be responsible for any actions of third parties.
License. Subject to the terms of this Agreement, we grant you a non-exclusive and non-transferable license to access the Services over your computer or computers. This includes a license from us to you over any and all information, data, text, software, messages and other materials (collectively, “Content”) contributed by us to the Service. You grant Computica a license to access, copy, modify, and otherwise to store and utilize all Content that you input or contribute to your account within the Service. You understand and agree that your ability to collect and export data from the service is through the process of, and subject to the limitations of, the various report functions provided by the Service.
Service Availability, Features, & Modification
We reserve the right to supplement, change, or modify the Service in its appearance and/or any features or functions of the Service, in any way, in whole or in part at any time for any reason without notice. We shall not be liable and shall have no obligation to you or any third party in the event we exercise our right to do so. The Service is subject to transmission limitation or interruption. You acknowledge and agree that access to the Service and/or the Information may not be available on a continuous basis and that the Service will be subject to periodic downtime to permit hardware and/or software maintenance to take place.
You acknowledge and agree that we are not responsible for performance degradation and delays. You acknowledge that we shall not be liable to you if the Service is interrupted for any reason. If you are dissatisfied with the Service, you agree that your sole remedy shall be to cease using of the Service.
We may also provide integrations to third party software programs or services. In order to use these integrations you must have access to those outside programs or services, and you (and not Computica, Inc) are solely responsible for, without limitation, obtaining and maintaining all accounts and infrastructure needed to access and use those third party services, and paying all charges related thereto. You acknowledge that the Service may not be compatible with all versions or features of these third party programs or services, and that the integrations may be limited in scope. You acknowledge that we shall not be liable to you if these integrations should become interrupted or restricted for any reason, including, but not limited to, updates to the Service, errors or inaccuracies, or changes with the third party programs or services.
Restrictions on Use of Services
Except as expressly permitted, you may not reproduce, disclose, redistribute, retransmit, publish, sublicense, assign, transfer or commercially exploit any of the Services or any other content that you receive, directly or indirectly, through the Services to anyone without prior written approval from Computica You may not use or permit anyone to use the information provided through the Services for any unlawful or unauthorized purpose.
You must not engage in the uploading, posting, decompiling, reverse engineering, disassembling, modification, copying, distribution, transmission, reproduction, republication, licensing, display, sale, transfer or creation of derivative products or other works of or from any product, service, information, content, software, message, advertisement or any other work found at, aggregated at, contained on, distributed through, linked to or from, downloaded to or from or in any other manner accessed from the Service.
You must not post, transmit, publish, disseminate, or otherwise communicate any information or material: (a) that is defamatory, libelous, indecent, obscene, fraudulent, threatening, abusive, or invades another person’s privacy, proprietary or any other legal rights; (b) that contains any viruses, cancel bots, Trojan horses, harmful code, or other computer software or program designed to interrupt the Service or the proper functioning of any software, hardware, equipment or materials used in connection with the Service; (c) that is bulk unsolicited advertising, promotional information, e-mail, or other solicitation, including without limitation, junk mail, “spam,” chain letters or pyramid schemes of any sort, to any person through the use of the Service. We reserve the right to take any appropriate action if we become aware of any use of the Service which we believe violates any law or is otherwise wrongful.
You must not use the Service if you are acting on behalf of a company that offers services that are competitive with Computica, or allow any third parties that are or may be competitive with Computica to access the Service through your account. You must not use the Service to gain information for the purpose of conducting activity that may be harmful to Computica. You agree that violation of this paragraph will result in indefinite but substantial harm to Computica, which shall have the right to collect liquidated damages from you for violation of this paragraph in the amount of $25,000.00 per incident of access or use in violation of this paragraph.
Termination. You agree that Computica, at its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any Content within the Service, if you have materially violated or acted inconsistently with this Agreement, including but not limited to any failure of timely payment when due. You agree that any termination of your access to the Service under any provision of this Agreement may be effected with a 3-day notice, and you acknowledge and agree that Computica may deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Computica shall not be liable to you or any third-party for any termination of access to the Service. In the case of account termination by you, you agree to pay any past-due invoice amounts and any fees that may be due on your account to fulfill the service contract period. You also agree that Computica does not have any obligations to perform termination of your account if such termination request is submitted by you or by any third-party on your behalf by means of telephone, fax, voice message, regular or electronic mail, or any method other than that which is outlined in the Cancellation section of these terms of service.
Dealings with Your Customers. Your correspondence or business dealings with your customers maintained on the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and your customers. You agree that Computica shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such customers on the Service, regardless of the extent of your reliance on the Service. You agree to defend, indemnify, and hold harmless any Providing Party (as defined herein) from any claims or suggestions to the contrary.
Use of Information. Computica does not sell or lease client information to anyone. Computica cannot guarantee the absolute security of information shared or stored via the Total Party Planner service. We do, however, use some of the most secure forms of online communication available, including data encryption, Secure Sockets Layer (SSL) protocol, and protection of accounts by user names and passwords.
Disclaimer of Warranties. You expressly understand and agree that:
YOU ARE USING THE SERVICES AT YOUR OWN RISK. THE SERVICES ARE DISTRIBUTED ON AN “AS IS” BASIS AND “AS AVAILABLE” BASIS AND THERE MAY BE DELAYS, OMISSIONS, ERRORS OR INACCURACIES IN SUCH INFORMATION AND DATA. THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE LAWS APPLICABLE TO THE TERMS AND CONDITIONS. YOU WILL BEAR ANY AND ALL LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICES OR INABILITY TO USE THE SERVICES OR OUT OF ANY BREACH OF ANY WARRANTY.
NONE OF COMPUTICA INC., ANY LICENSOR, AGENT, EMPLOYEE, AFFILIATE OR AGENT OF COMPUTICA, INC. OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DELIVERING THE SERVICES (EACH, A “PROVIDING PARTY”) WARRANTS THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR MAKES ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICES OR FROM ANY INVESTMENT DECISION MADE USING THE DATA, INFORMATION, OR TRANSACTIONS PROVIDED BY THE SERVICES.
NEITHER COMPUTICA, INC. NOR ANY OF ITS RELATED PERSONS OR ENTITIES GUARANTEES THE ACCURACY, SEQUENCE, COMPLETENESS, TIMELINESS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OF THE INFORMATION OR DATA MADE AVAILABLE THROUGH THE SERVICES OR BY ANY OTHER FORCE MAJEURE OR ANY OTHER CAUSE BEYOND THEIR REASONABLE CONTROL.
Limitation of Liability
NO PROVIDING PARTY (1) WILL BE LIABLE TO YOU OR TO ANYONE ELSE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY ITS NEGLIGENCE OR OMISSION IN PROCURING, COMPILING, INTERPRETING, EDITING, WRITING, REPORTING, SECURING, PROTECTING, OR DELIVERING, ANY INFORMATION OR DATA THROUGH SERVICES, (B) WILL BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION OR ACTION TAKEN BY YOU IN RELIANCE UPON WHICH SUCH INFORMATION OR DATA OR FOR ANY CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES, DAMAGES RESULTING FROM INCONVENIENCES, OR LOSS OF USE OF THE SERVICE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (C) WILL BE LIABLE TO YOU FOR THE ACCURACY OF THE INFORMATION PROVIDED THROUGH THE SERVICE, EVEN IF THE PROVIDING PARTY WAS NEGLIGENT IN PREPARING SAID INFORMATION, OR FOR DELAYS OR OMISSIONS THEREIN NOR FOR ANY LOST PROFITS, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES.
THE EXTENT OF ANY PROVIDING PARTY’S LIABILITY TO ANY CUSTOMER, LICENSEE, RELATED ENTITY OR INDIVIDUAL, OR TO THE SUCCESSORS OR ASSIGNS OF ANY OF THEM FOR ANY CLAIM OR MATTER, WHETHER BROUGHT IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO AMOUNTS PAID UNDER THIS AGREEMENT BY THE CLAIMING ACCOUNT HOLDER OR BY THE SINGLE ACCOUNT HOLDER TO WHICH THE CLAIMS MOST CLOSELY RELATE. IF ANY CLAIM OR MATTER RELATES TO MORE THAN ONE ACCOUNT HOLDER OR LICENSEE, THIS MAXIMUM LIABILITY OF COMPUTICA WILL BE THE LARGEST AMOUNT PAID BY ANY ONE SUCH ACCOUNT HOLDER OR LICENSEE. WHERE MORE THAN ONE PROVIDING PARTY IS SUBJECT TO ANY CLAIM OR MATTER, THE RECOVERY OR THE CLAIMANT OR CLAIMANTS WILL BE LIMITED AS A GROUP TO THE DOLLAR AMOUNTS PER THIS PARAGRAPH AS IF ALL PROVIDING PARTIES WERE A SINGLE ENTITY.
Exclusions and Limitations. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Indemnification. You agree, at your own expense, to indemnify, defend and hold harmless Computica or any Providing Party, against any claim, suit, action, or other proceeding brought against any Providing Party by a third party to the extent that such claim, suit, action, or other proceeding is based on or arises in connection with your use of the Services (or the Service by persons using your User ID and/or password). You agree to pay any and all costs, damages, and expenses, including without limitation, reasonable attorney’s fees and costs awarded against or otherwise incurred by or in connection with or arising from any such claim, suit, action or proceeding attributable to such claim.
Protection of Parties. The provisions of this Agreement are for the benefit of Computica, Customer, and with respect to the release of any non-public information, each Providing Party.
Course of Dealing. Neither the course of conduct between Computica and you nor trade practices shall act to modify the provisions of this Agreement.
Intellectual Property. You acknowledge that Computica has exclusive proprietary rights in the information received by you through the Services, and in the technology and software code that provide the Services. The Services are protected by copyrights, trademarks, service marks, and/or other laws of the United States, and as extended throughout the world by international treaties.
Force Majeure. Neither party shall be liable for non-performance due to acts of God, civil disturbances, strikes, power failures, telecommunications breakdowns, changes in applicable laws or regulations, fire or any other cause which such party cannot prevent by the exercise of reasonable diligence.
No waiver or amendment of any term or condition of this Agreement shall be valid or binding on either Party unless agreed to in writing by both Parties. You also may be subject to additional terms and conditions that may apply when you use affiliate services, third-party content or third-party software. This Agreement and the relationship between you and Computica shall be governed by the laws of the Commonwealth of Virginia that apply as if this contract was made and performed entirely within such state. The failure of Computica to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect. Any notice or other communication provided for hereunder shall be deemed to have been duly given when delivered, but only if the sender obtains reasonable proof of such delivery. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.
The parties agree to be bound by this Agreement, and have caused it to be executed by their duly authorized representatives.