TOTAL PARTY PLANNER SOFTWARE
TERMS OF SERVICE
A. Total Party Planner Software, LLC (“TPPS”, “our”, “we” or “us”) provides catering and banquet management software to business customers (“Customer” or “Account Owner” as defined below) for the management of their catering and/or banquet management business (“Service”) via the Internet on a website (“Site”) hosted and maintained by TPPS. These terms of service (“Terms of Service” or “Agreement”) govern/s your use of the Site and are/is by and between TPPS and you, the user, on behalf of yourself and the Customer for which you may visit the Site (“Customer”, “Account Owner”, “you” or “your”). The Service is solely for Customer’s use and may not be resold, assigned, or redistributed to any person or entity. By using and accepting the Service or functions offered in or by the Site you waive any right to claim ambiguity or error in these Terms of Service.
The Site is not intended for the use of children under 18 and no such person is authorized to use it. By using the Site, you are representing that you are at least 18 years old. You also represent, by accessing or using the Site, that you are of legal age to enter into legal agreements.
B. You must have access to the Internet to use the Service. You 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.
C. No person or entity not a party to this Agreement will be deemed to be a third-party beneficiary of this Agreement, except as expressly stated herein with regard to a Providing Party. “Providing Party” for purposes of this Agreement, means TPPS, Customer, and any other party that provides non-public information to a party hereto 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 acknowledge that you will continue to be bound by these Terms of Service. In the event that you wish to transfer ownership of your account to another party, you must follow the procedures outlined in this Agreement. We must receive, in writing, your wish to transfer ownership of your account and the new Account Owner must agree to and execute the Terms of Service. We reserve the right to update the account billing to the most current retail prices listed on our website in the event that the account changes ownership.
A. Billing. Account payments are due and 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.
i. Monthly: 1month initial service commitment, paid on a monthly basis, renewed monthly
ii. One Year: 12 months’ Service, paid in advance, renewed for successive 12-month periods
iii. 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
iv. 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
Any upgrades to the account after the date of this Agreement will be billed in addition to the agreed upon amount. Upon each renewal, for every subscription period, payments will either be charged to the credit card on file or payable upon receipt of TPPS’s invoice. If paying by credit card, this Agreement MUST be signed by the credit card holder. No exceptions can be permitted.
B. Additional Terms, Available Funds. We reserve the right, at our sole discretion, to terminate 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. 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. The contract term is determined by the payment plan specified during enrollment. If TPPS does not receive payment as scheduled, Customer agrees to pay TPPS all amounts due upon demand. Customer agrees to pay all reasonable attorneys’ and collection fees arising from TPPS’s efforts to collect any past due amounts from Customer.
C. 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, 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.
D. Price Increase. TPPS may increase the prices charged for the Services; provided that TPPS will provide Customer at least thirty (30) calendar days’ prior notice of such price increases. Such notice may be made by means of email or a posting on the Website. Customer’s continued use of the Services following notification shall be taken as evidence of Customer’s consent and agreement to the price increases. TPPS will automatically apply any price increase to Customer’s billing. Changing from a yearly billing plan to a monthly billing plan, or a monthly billing plan to an annual billing plan, will subject customer to pay current retail price as listed on the website.
E. Promotions/Discounts. TPPS reserves the right to remove any and all promotional rates, discounts, or specials at the end of the agreed upon terms.
F. Late Fee. A $25.00 late fee may be assessed for any failed credit card transaction or returned check. If Customer is setup for credit card billing, TPPS reserves the right to run Customer’s 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 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 Customer’s outstanding balance is paid in full. In addition, TPPS reserves the right to require Customer, if previously on a monthly billing plan with a history of delinquency, to pay for Service on a yearly basis instead of a monthly basis. TPPS may maintain, but does not guarantee that it will maintain, Customer data so that it will be available to Customer upon reconnection.
G. Setup Fee. The setup fee, also referred to as the implementation fee, must be paid in full at the time of purchase. In certain instances the setup fee may be financed over a six month period. In the event that an account is cancelled prior to the end of the six-month finance period, the full balance of the setup fee will be billed to the Customer. The remaining unpaid balance must be paid in full at the time of cancellation.
3. Cancellations, Refunds and Termination.
A. This Agreement shall be effective from the start date of your subscription 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. Price increase policies are noted in the Billing section.
B. Cancellations. You may cancel your Service by written notice received via email at email@example.com at least 30 days prior to the period renewal date applicable to your account. 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. TPPS shall have no obligation to maintain any account data after the date of termination. If reactivating an account or starting a new Service account in the future, then-current retail pricing and a new account activation fee will apply.
C. Refunds. For a period of 30 days following the date of purchase you may cancel the Service for a refund of the subscription charge. The account activation fee and any additional options are non-refundable. After 30 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.
D. Termination. In the event of any termination, TPPS’s obligation to provide the Service to you will cease immediately.
4. 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 solely 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:
A. immediately notify TPPS of any unauthorized use of your usernames, passwords or account or any other breach of security, and
B. ensure that you (and each user) logout from your account at the end of each session.
TPPS cannot and will not be liable for any loss or damage arising from the unauthorized use of your usernames, passwords or account; or any breach of security.
5. Account Contacts & Users.
The following roles will be used to define rights and permissions within each Customer account:
- Account Owner(s): The entity, as designated by you, the Customer, is the ultimate owner of the subscription. 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 for 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). The Payment Person/Entity may also be the Account Owner.
- Account Administrator(s): The Account Administrator (“Administrator”) 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.
A. 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. 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 with the usernames.
B. We recommend that you, and all other users from your organization, sign up for user accounts by providing your company contact information. In particular, we recommend that you use your company email address. You agree to: a) provide 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 accurate, current, and complete. If you provide any information that is inaccurate, outdated, or incomplete, or if TPPS has reasonable bases to suspect that such information is inaccurate, outdated, or incomplete, TPPS may terminate your user account and refuse current or future use of any or all of the Services.
C. TPPS makes no guarantee of data security. It cannot, and will not, release any information to parties other than the Account Owner, Administrator, and active users. Third-party companies that 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.
D. We will take reasonable steps to verify the identity of an Account Owner or Administrator contacting us to make changes to your account, but we will not be responsible for any actions of third parties.
Subject to the terms of this Agreement, we grant you a non-exclusive and non-transferable license to access the Services with your computer or computers. This includes a license from us to you for any and all information, data, text, software, messages and other materials (“Content”) contributed by us to the Service. You grant TPPS 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.
7. Service Availability, Features, & Modification
A. 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.
B. 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.
C. We may also provide integration 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 TPPS) 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.
8. Restrictions on Use of Services
A. 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 TPPS. You may not use or permit anyone to use the information provided through the Services for any unlawful or unauthorized purpose.
B. You warrant that you will not access or use the Service in any unlawful manner, for any unlawful purpose or in violation of these Terms of Services or applicable laws, rules and regulations.
C. 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.
D. 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 action we find appropriate if we become aware of any use of the Service which we believe violates any law or is otherwise inappropriate.
E. You must not use the Service if you are acting on behalf of a company that offers services that are competitive with TPPS or allow any third parties that are or may be competitive with TPPS 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 TPPS. You agree that violation of this paragraph will result in indefinite, but substantial harm to TPPS, for which you may be held accountable.
You agree that TPPS, 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 become effective with a 3-day notice, and you acknowledge and agree that TPPS 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 TPPS 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 TPPS does not have any obligation to terminate 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.
10. 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 TPPS 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.
11. Use of Information.
TPPS does not sell or lease Customer information to anyone. TPPS cannot guarantee the absolute security of information shared or stored via the 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 usernames and passwords.
12. Disclaimer of Warranties.
You expressly understand and agree that:
A. 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.
B. NONE OF TPPS, ANY LICENSOR, AGENT, EMPLOYEE, AFFILIATE OR AGENT OF TPPS 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.
13. 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 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 TPPS 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.
14. 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.
YOU AGREE, AT YOUR OWN EXPENSE, TO INDEMNIFY, DEFEND AND HOLD HARMLESS TPPS OR ANY PROVIDING PARTY, AGAINST ANY CLAIM, SUIT, ACTION, OR OTHER PROCEEDING BROUGHT AGAINST TPPS OR 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 ATTORNEYS’ 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.
16. Protection of Parties.
The provisions of this Agreement are for the benefit of TPPS, Customer, and with respect to the release of any non-public information, each Providing Party.
17. Course of Dealing.
Neither the course of conduct between TPPS and you, nor trade practices shall act to modify the provisions of this Agreement.
18. Intellectual Property.
You acknowledge that TPPS has exclusive proprietary rights in the information received by you through the Services, and in the technology and software code that provide the Services.
Unless otherwise noted, product names, designs, logos, titles, text, images, domain names, audio and video of/within this Site are the trademarks, service marks, trade names, copyrights or other property (herein referred to as “Intellectual Property”) of TPPS. All other unregistered and registered trademarks are the property of their respective owners and are hereby acknowledged. Nothing contained on the Site should be construed as granting, by implication, estoppel, or otherwise, license or right to use any of TPPS ‘s Intellectual Property displayed on the Site without the express written permission of TPPS.
TPPS respects the intellectual property rights of third parties. In the event that you have a good faith belief that your copyrights have been violated by the use or display of certain content within the Service, it is our policy to investigate and promptly undertake efforts to resolve the issue. To notify us regarding an alleged copyright violation, you must provide us with all of the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; (ii) identification of the copyrighted work(s) claimed to have been infringed, and information reasonably sufficient to permit us to locate the material; (iii) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and if available, an electronic mail address at which you may be contacted; (iv) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (v) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For this notification to be effective, you must provide it to TPPS’s designated agent at:
Total Party Planner Software, LLC
C/O Fullsteam Operations LLC
Attn: Ed Graf
540 Devall Drive, Suite 301
Auburn, AL 36832
19. Force Majeure.
Neither party hereto 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 for which such party is not responsible.
20. General Provisions.
This Agreement constitutes the entire agreement between you and TPPS and governs your use of the Service, superseding any prior agreements between you and TPPS. You represent and warrant that (a) you have the power, authority, permission, and capacity to agree to be bound by these Terms of Service on behalf of yourself and the Account Owner (b) you have a legitimate business need to use the Service for its intended purpose; (c) you are an authorized representative of the business on behalf of which you are using the Service and use of the Service by you is at the business’s direction and with the business’s knowledge; (d) you, and if different from the Account Owner Contact Person, have the authority to use all features and functions of the Service, without limitation; (e) you have the authority to review and make changes to account billing information and purchases; (f) any information you provide TPPS will be accurate, current and complete; and (g) you will update your information as necessary so that it remains accurate, current and complete.
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 shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. In case of any dispute related to this Agreement, the parties agree to submit to personal jurisdiction in the State of Delaware. Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT. The failure of TPPS 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 agree that the court should 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.