AGREEMENT BETWEEN CUSTOMER AND BETTER CATER, INC.
1. Services Offered
Better Cater catering & banquet management software (referred hereinafter as “Better Cater”, Better Cater, Inc., “our”, “we” and/or “us”) offers business customers (also referred hereinafter as “Customers”, “Customer”, “subscriber”, “you” and/or “your”) who agree to the following terms and conditions of service (hereinafter the “Terms and Conditions”) the ability (the “Service”) to manage their catering and/or banquet management business via the Internet on a web site (the “Site”) hosted and maintained by Better Cater, Inc. To use the Service, you must obtain access to the Internet, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the Internet, including a computer and modem or other access device.
Every month, Better Cater, Inc. will charge your credit card (“Monthly Plan”) for the amount you specified during the enrollment procedure (the “Membership”). Optionally, you may opt to pay a discounted monthly rate by paying for 1 full year (“Yearly Plan”), or, for 3 months (“Quarterly Plan”), in advance. The Yearly Plan, or, Quarterly Plan, discounted amount is determined at enrollment. We reserve the absolute right, at our sole discretion, to terminate our provision of the Service to you if funds are not available. The first payment will be due 30 days after the execution of these Terms and Conditions. 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 (Monthly Plan, Quarterly Plan, or Yearly Plan). If Better Cater, Inc. does not receive payment from the card issuer, you agree to pay Better Cater, Inc. all amounts due upon demand. Customer agrees to pay all attorney and collection fees arising from Better, Inc.’s efforts to collect any past due amounts from Customer.
A. Continuous Service Membership. Subscription membership in the Service is on a continuous service basis. This means that once you have become a subscribing member, your membership will be automatically renewed and your credit card will be charged based on the subscription payment plan in accordance with the term length. Credit card charges may be processed immediately after invoicing.
B. Price Increase. A 10% max price increase may be applied at each (1) year interval of a customers term. The determination of a price increase is at the sole discretion of Better Cater, Inc. Should a price increase apply, Better Cater, Inc. will notify Customer 10 days in advance of term ending. Better Cater Inc. will automatically apply any price increase to Customers credit card for another term length. Changing from a quarterly billing plan, to a monthly billing plan will subject customer to pay current retail price at the monthly price listed on the website. Changing from a yearly billing plan, to a quarterly, or monthly billing plan will subject customer to pay current retail price at the quarterly or monthly price listed on the website.
C. Late Fee. If a credit card account setup for monthly or quarterly billing cannot be successfully completed on Customers scheduled draft day, a $25.00 fee will be assessed. Each Customer will be allowed one (1) declined transaction per year. Better Cater, Inc. will try to run Customers card two (2) days after the initial declined attempt without Customer approval. Customer accounts that remain unpaid for 3 weeks after the initial billing date will have service terminated without warning. If a Customer wishes to have service reconnected, a $100.00 reactivation fee will be added to the outstanding balance. Reconnection to the service will not be granted until the Customers outstanding balance is paid in full. In addition, Better Cater, Inc. reserves the right to require Customers with a history of delinquency to pay for their service on a yearly basis instead of a quarterly or monthly draft.
D. Cancellations. You may cancel your Better Cater with a 30 day notice. NO REFUNDS OR CREDITS: Upon cancellation or termination of the Service, you will not receive a refund for any charges or fees associated with the Service. If you cancel prior to the processing of your first invoice on the 30th day, you will not be charged.
3. Term and Termination
The Terms and Conditions shall continue in full force and effect for a period of one year from the date you originally accept them and shall be automatically renewed on each anniversary thereof for an additional term of one year. The Terms and Conditions may be terminated as follows:
A. Either party may terminate the Terms and Conditions at any time and for any reason upon not less than 30 days notice of termination to the other party, and
B. In the event of any termination pursuant to this Section, Better Cater, Inc.’s obligation to provide the Service to you will cease immediately.
4. Acceptance of Terms
By accepting the Terms and Conditions, your business will be made available on Better Cater. Better Cater, Inc. reserves the right to periodically modify these Terms and Conditions. Customers will be notified via email and/or notices on the Better Cater website that change(s) have been made. All Customers agree to be bound to the most recent version of the Terms and Conditions, regardless of what version Customer initially signed. You can review the most recent version of the Terms and Conditions at any time at www.bettercater.com. In addition, you will be subject to any guidelines or rules we may post from time to time. All such guidelines or rules are hereby incorporated by reference into the Terms and Conditions. Should you breach this Agreement, Better Cater, Inc. will revoke your license to use the Service and suspend your right of access. In such a case, no portion of your membership payment will be refunded. Should Better Cater, Inc. decide to suspend the Service for any reason other than breach, it will refund to you the unused portion of your membership payment, which will be your sole and exclusive remedy upon such a suspension of Service.
5. Member Account, Password and Security
You will receive a password and login designation. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to:
A. immediately notify Better Cater, Inc. of any unauthorized use of your password or account or any other breach of security, and
B. ensure that you logout from your account at the end of each session.
Better Cater, 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.
Subject to the Terms and Conditions, Better Cater, Inc. grants you a non-exclusive and non-transferable license to access the Services over your computer or computers. Better Cater, Inc. is the owner of any and all information, data, text, software, messages and other materials (collectively, “Content”) within the Service.
7. 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 Better Cater, Inc. You may not use or permit anyone to use the information provided through the Services for any unlawful or unauthorized purpose.
You agree that Better Cater, Inc., 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, for any reason, including, without limitation, for lack of use or if Better Cater, Inc. believes that you have violated or acted inconsistently with the letter or spirit of the Terms and Conditions. Better Cater, Inc. may also at its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of the Terms and Conditions may be effected without prior notice, and acknowledge and agree that Better Cater, Inc. may immediately 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 Better Cater, Inc. shall not be liable to you or any third-party for any termination of your access to the Service. In the case of voluntary account termination you agree to pay any past-due invoice amounts and early contract termination fee should the service contract period not be fulfilled. You also agree that Better Cater, Inc. 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.
9. Dealings with Customers
Your correspondence or business dealings with 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 such customers. You agree that Better Cater, Inc. 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.
10. 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 BETTER CATER INC.’S, ANY LICENSOR, EMPLOYEE, AFFILIATE OR AGENT OF BETTER CATER, 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.
11. DISCLAIMER OF LIABILITIES
NO PROVIDING PARTY (A) 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, (B) 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, OR DELIVERING, ANY INFORMATION OR DATA THROUGH SERVICES, (C) 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 (D) 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.
12. 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 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. 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.
14. Protection of Terms and Services
The provisions of the Terms and Conditions are for the benefit of each Providing Party. Each Providing Party shall have the right to assert and enforce the provisions of the Terms and Conditions directly on their own behalf.
Neither the course of conduct between Better Cater, Inc. and you nor trade practices shall act to modify the provisions of the Terms and Conditions.
16. Intellectual Property
You acknowledge that each of Better Cater, Inc. has exclusive proprietary rights in the information received by you through the Services. The Services are protected by copyrights, trademarks, service marks, international treaties, and/or other proprietary rights laws of the United States. The Services are also protected as a collective work or compilation under U.S. copyright and other laws and treaties.
17. General Provisions
The Terms and Conditions constitute the entire agreement between you and Better Cater, Inc. and govern your use of the Service, superseding any prior agreements between you and Better Cater, Inc. 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. The Terms and Conditions and the relationship between you and Better Cater, Inc. shall be governed by the laws of the State of California (United States) that apply as if this contract was made and performed entirely within such state. The failure of Better Cater, Inc. to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions 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 the Terms and Conditions 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 the Terms and Conditions must be filed within one year after such claim or cause of action arose or be forever barred.