Terms of Service
Client desires to retain the Company (Payment Saver LLC dba Gravy) to provide certain services as more particularly described in this Agreement, and the Company is willing to provide such services under the terms and conditions hereof.
Now, therefore, in consideration of the mutual covenants and agreements herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and Client agree as follows:
1. Services and Definitions:
1.1 Services. The Company agrees to utilize various Company processes and procedures to help Client recover Failed Payments (defined below). Company expects to engage with Client’s customers who are the sources of Failed Payments and to communicate with such customers on behalf of Client, in order to turn Failed Payments into Recovered Revenue (defined below). The Parties shall collaborate to create a customized Failed Payment recovery program (the “Program”) for Client. Client will work with and give the Company access to the Client’s existing systems and databases in order to identify Failed Payments, to update and correct billing information and to utilize such systems and databases in connection with recovering Failed Payments and updating Clients records as appropriate. Client and the Company acknowledge and agree that, if the Client’s payment processing system allows, the Company will manually re-try the Failed Payment on an agreed-upon schedule with Client, but that any such Failed Payments will be processed through Client’s processing system and not the Company’s.
1.2 Definitions. Each capitalized term used in this Agreement is defined in this Section 1.2, elsewhere in this Agreement.
(a) “Failed Payment” means any payment due from any customer of Client which has failed to be paid for any reason, but is owed to Client based on an agreement between Client and its customer.
(b) “Services” means the services the Company is providing to Client pursuant to this Agreement.
(c) “Recovered Revenue” means any Failed Payment or portion thereof (as the case may be) that is remitted to Client at any time.
2. Additional Client’s Obligations. Client shall:
2.1 Respond promptly to any requests from the Company for instructions, information or approvals the Company requests in connection with providing the Services.
2.2 Cooperate with the Company in the Company’s performance of the Services and provide access to Client’s systems, databases, premises, employees, contractors and equipment as the Company reasonably determines is appropriate to enable the Company to provide the Services.
2.3 Take all steps necessary to prevent Client-caused delays in the Company’s provision of the Services.
2.4 Not, during the Term or the twelve (12) month period immediately thereafter, directly or indirectly, solicit, hire, recruit, or attempt to solicit, hire, or recruit (each a “Restricted Action”), any employee of the Company or any affiliate thereof or any person who has been employed by the Company or any affiliate thereof any point during the twelve (12) month period prior to the taking of any Restricted Action (each a “Covered Employee”), or induce the termination of employment of any Covered Employee.
3. Savings Report; Additional Payment Terms:
3.1 Savings Report. For purposes of the calculations of payments outlined in the client agreement and all other purposes hereunder, during the Term (as defined below), the Company shall deliver to Client by no later than the seventh (7th) day of each month a report that includes the Company’s calculation of Recovered Revenue during the previous month (the “Savings Report”). Client shall have three (3) days from the Company’s delivery of the Savings Report (the “Review Period”) to review the Savings Report. If Client objects to any part of the Savings Report, Client shall deliver written notice thereof (an “Objection Notice”) to the Company before the Review Period expires. If Client does not deliver an Objection Notice in accordance with the preceding sentence, Client shall be deemed to have accepted the Savings Report, which shall become final for purposes of this Agreement except as otherwise provided herein. If Client duly delivers an Objection Notice, the Parties shall negotiate in good faith to resolve such objection as soon as reasonably possible, in the interim Client shall pay any Commissions owed to the Company based on the Savings Report pending the Parties’ resolution of the Objection Notice. If the Parties resolve the Objection Notice in Client’s favor, the Company shall promptly refund the applicable amount of any Commissions to Client. If the Company from time to time identifies any errors or omissions in a Savings Report, the Parties shall cooperate in good faith to resolve any overpayments or underpayments.
3.2 Additional Payment Terms. The Company reserves the right to require, in the Company’s sole discretion, that Client pay any amounts due under the Agreement by means other than ACH transfer, and Client agrees to comply with the Company’s payment instructions. Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, the Company’s income. The Company shall include applicable taxes on invoices for the Services, at any time and from time to time as such taxes are or become applicable, unless Client provides applicable sales tax exemption certificate(s), and such certificate(s) are reasonably satisfactory to the Company, prior to provision of the Services. Client shall not withhold any payments or make any setoff against any payments due hereunder. All late payments by Client shall bear interest at the lesser of the rate one and five tenths (1.5) percent per month or the highest rate permissible under applicable law. Client shall also reimburse the Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
4. Representations of Client:
Client hereby represents and warrants to the Company that: (a) Client has all right, power and authority necessary to enter into this Agreement and perform Client’s obligations hereunder; (b) Client’s entry into this Agreement does not and will not violate any agreement between or among Client and any other party(ies); and (c) Client’s performance under this Agreement will conform to applicable laws and government (whether federal, state, local or foreign) rules and regulations.
5. Intellectual Property:
Due to the proprietary and confidential nature of the Services provided hereunder, the Parties acknowledge and agree that all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how or other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under this Agreement or prepared by or on behalf of the Company in the course of performing the Services (collectively, “Deliverables”), but excluding any Confidential Information (defined below) of Client, shall be owned by the Company. The Company hereby grants to Client a license to use the Intellectual Property Rights in the Deliverables on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services. If Client should, by operation of law or otherwise, be deemed to own any such Intellectual Property Rights, Client hereby assigns all right, title and interest in and to such Intellectual Property Rights to the Company.
From time to time during the term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party, or the other Party may encounter in connection herewith (in each case as the “Receiving Party”), non-public, proprietary or confidential information or materials of the Disclosing Party or its affiliates, customers or vendors, regardless of whether disclosed, made available or encountered in written or other tangible form or orally, and regardless of whether labeled as “confidential” (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Section 7; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in the Receiving Party’s possession prior to its being disclosed, made available or encountered hereunder; or (d) was or is independently developed by the Receiving Party without using any Confidential Information. The Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s employees, agents, contractors and representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement (and the Receiving Party shall ensure that all such persons comply with the provisions of this Section7). If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure (to the extent permitted by law), use commercially reasonable efforts to notify the Disclosing Party of such requirement to afford the Disclosing Party the opportunity to seek, at the Disclosing Party’s sole cost and expense, a protective order or other remedy and shall reasonably cooperate with the Disclosing Party in connection therewith. Either Party is entitled to seek enforcement of its rights under this Section 7 by application in any court of competent jurisdiction for injunctive or other equitable relief.
7. Termination; Effect of Termination or Expiration:
7.1 A Party may terminate this Agreement for any reason by delivering written notice of such termination to the other Party, such termination to be effective no earlier than thirty (30) days after the delivery of such termination notice.
7.2 A Party may terminate this Agreement (a) immediately upon written notice to the other Party if such other Party materially breaches this Agreement and such breach is incapable of cure or (b) ten (10) days (the “Cure Period”) after delivering written notice to the other Party if such other Party materially breaches this Agreement in a curable manner and does not cure such breach during the Cure Period.
7.3 The Company may suspend provision of the Services or terminate this Agreement immediately upon written notice to Client if Client: (a) fails to perform any of Client’s obligations under this Agreement, (b) fails to pay any amount when due hereunder, (c) ceases or threatens to cease to carry on Client’s business, liquidates or dissolves Client’s business, or disposes of a substantial portion of Client’s assets, (d) becomes insolvent or makes an assignment for the benefit of creditors, or fails generally to pay Client’s debts as they become due or otherwise is likely to become insolvent, (e) voluntarily or involuntarily becomes the subject of any proceeding relating to bankruptcy, insolvency, receivership, liquidation or other similar proceeding or (f) has a material adverse change in Client’s financial condition or ability to perform Client’s obligations under this Agreement.
7.4 Upon the termination or expiration of this Agreement, Client shall immediately remit to the Company any Management Fees, Commissions and other amounts under this Agreement and not yet paid to the Company (“Outstanding Fees”) and shall promptly (but in any event no later than the earlier of the date such Management Fees, Commissions or other amounts would have been due if this Agreement had not been terminated or expired) remit to the Company any Management Fees, Commissions and other amounts not yet due but payable in respect of the period prior to the effective date of such termination or expiration (the “Pre-Termination Fees”). The following will survive the expiration or termination of this Agreement: (a) any rights or obligations under this Section 7.4 or any of Sections 2, 3.4, 4 and 5 and 6 through 23; (b) any rights or obligations in this Agreement which, by their nature, should survive the expiration or termination of this Agreement; and (c) and any rights and obligations under the Client ACH Payment Agreement.
10. Limitation of Liability:
10.1 In no event shall the company be liable to client or to any third party for any loss of use, revenue or profit or loss of data or diminution in value, or for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damage was foreseeable and whether or not the parties have been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose.
10.2 In no event shall the company’s aggregate liability arising out of or related to this agreement exceed the amounts paid or payable to the company under this agreement in the three (3) month period that precedes the event giving rise to the claim.
Client will indemnify, defend and hold harmless the Company, the Company affiliates and employees, directors, managers, officers, principals (including partners, shareholders, members or other holders of an ownership interest) and agents of any of the foregoing, from and against any losses, liabilities, first-party or third-party claims, demands, damages or expenses (including reasonable attorneys’ fees and court costs) relating to or arising out of (a) a breach of any of Client’s representations, warranties, covenants or agreements set forth in this Agreement, (b) the negligence or more culpable acts or omissions (e.g., gross negligence or recklessness) of Client, Client’s personnel, agents or contractors in connection with the performance Client’s obligations hereunder or the receipt of any of the Services, (c) Client’s use of the Services or any Deliverables, or (d) any inaccurate information provided by or on behalf of Client or (d) any claim that the Company’s use of the Client IP (defined below) infringes any of the intellectual property rights of any third party. Notwithstanding the previous sentence, (i) the Company shall be entitled to participate in the defense of any of the foregoing and to employ counsel of the Company’s choosing and at the Company’s expense to assist in the handling thereof, and (ii) Client shall obtain the Company’s prior written approval, which approval shall not be unreasonably withheld or delayed, before entering into any settlement or compromise thereof, consenting to a judgment with respect to thereto, ceasing to defend against the same or taking any similar action. The Company’s rights under this Section 11 do not limit any of the Company’s rights or remedies under this Agreement, at law or in equity.
12. Entire Agreement; Construction; Amendments.
This Agreement, including any exhibits, schedules, attachments and appendices to this Agreement, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. Titles or headings of Sections contained in this Agreement are inserted only as a matter of convenience and for reference, and in no way define, limit, extend, or prescribe the scope of this Agreement or the intent of any of its provisions. No amendment to, modification of, or waiver or consent under, this Agreement is effective unless it is in writing and signed by an authorized representative of each Party (or, in the case of a waiver or consent, by the waiving or consenting Party).
13. Further Assurances:
The Parties agree to execute any and all such further agreements, instruments, or documents, and to take any and all such further actions or to provide any and all such further authorizations, as may be required, necessary, or desirable to effect the transactions contemplated by this Agreement.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at such Party’s address set forth below such Party’s signature on the signature page to this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid), or by email with confirmation of transmission. Except as otherwise provided in this Agreement, a Notice is effective on delivery to the receiving Party.
15. Severability; Remedies:
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. None of the Company’s remedies under this Agreement are intended to be exclusive of any other remedy, and each remedy of the Company shall be cumulative and shall be in addition to every other remedy of the Company hereunder or now or hereafter existing at law, in equity or otherwise.
No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective successors and permitted assigns. Client shall not assign or transfer any of Client’s rights or delegate any of Client’s obligations under this Agreement without the prior written consent of the Company. Any purported assignment or delegation by Client in violation of this Section 17 shall be null and void. No permitted assignment or delegation shall relieve Client of any of Client’s obligations under this Agreement.
18. No Third-Party Beneficiaries:
Except for the parties entitled to indemnification under Section 10, (a) this Agreement benefits solely the Parties to this Agreement and their respective successors and permitted assigns, (b) and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
19. Independent Contractors.
The Parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this Agreement to create an employment or agency relationship, partnership or joint venture between the Parties. Notwithstanding the previous sentence, Client hereby authorizes the Company (a) to act on Client’s and Client’s affiliates’ express behalf, (b) to use Client’s and Client’s affiliates’ legal names, trade names, trade dress, logos and trademarks (collectively with the domain names described in the following clause, the “Client IP”) and (c) to use email addresses with domain names of Client and Client affiliates, in each case in connection with the Company’s providing the Services.
20. Choice of Law; Choice of Forum; Waiver of Jury Trail:
This Agreement and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of Georgia, without regard to the conflict of laws principles or rules of any jurisdiction to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement in any forum other than the United States District Court for the Northern District of Georgia or the courts of the State of Georgia sitting in Fulton County, Georgia, and any appellate court thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in such courts. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
22. Force Majeure.
The Company shall not be liable or responsible to Client, nor be deemed to have breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of the Company, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes or telecommunication breakdown or power outage; provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Client shall be entitled to give notice in writing to the Company to terminate this Agreement.
23. Press Releases/Publications.
Client agrees that the Company may reference this Agreement and the Company’s relationship with Client in product literature, advertisements, articles, press releases, marketing literature, presentations and the like. Client shall not publicly reference Client’s relationship with the Company without the Company’s prior written consent, such consent not be unreasonably withheld or delayed.
GravySolutions.io welcomes your questions or comments regarding the terms.
Payment Saver, LLC dba Gravy
5820 Clarion Street, Suite 200
Cumming, GA 30040
Effective as of July 17, 2019