Terms of Service
Client desires to retain the Company (Payment Saver LLC dba Gravy) to provide certain services as more particularly described in these Terms of Service (“Agreement”), and the Company is willing to provide such services under the terms and conditions hereof.
This Agreement may apply to you individually, the business or other legal entity user you represent, or both (individually and collectively, “Client”). If you are using the Services on behalf of a company or other legal entity, you hereby represent and warrant that you have the authority to enter into this Agreement on behalf of such entity. By accessing, registering for or using the Services, you: (1) acknowledge that you have read and understand this Agreement; (2) agree to be bound by it in its entirety, and (3) are entering into a legally binding agreement with us.
5. Confidential Information:
a. Definition of Confidential Information. “Confidential Information” means confidential or proprietary information provided by one Party (the “Disclosing Party”) to the other Party (the “Recipient”), either verbally or in writing, during the Term: (i) that is clearly marked or identified as confidential in writing or orally within thirty (30) days after disclosure, or (ii) whose confidential nature is reasonably apparent based on the circumstances under which it was disclosed.
b. Nondisclosure and Protection. Each Party as Recipient agrees: (i) not to make the Disclosing Party’s Confidential Information available to any third party without the Disclosing Party’s prior written consent, provided that the Recipient may disclose the Disclosing Party’s Confidential Information to its officers, directors, employees, contractors and advisors who have a “need to know” for purposes of this Agreement and are themselves legally bound by nondisclosure obligations at least as restrictive as those set forth in this Agreement; and (ii) to hold the Disclosing Party’s Confidential Information in confidence using at least the degree of care that it uses with respect to its own information of like nature and value, but in any event no less than reasonable care.
c. Exclusions. A Party’s Confidential Information shall not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is aggregated with other information and anonymized to the extent that it is not possible to identify its source or origin; or (v) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information.
d. Compelled Disclosure. This Section 5 will prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a Party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose the other Party’s Confidential Information shall first, to the extent lawful, have given sufficient and prompt written notice to the other Party of the receipt of any subpoena or other request for such disclosure.
a. Gravy Warranties. Gravy warrants that: (i) it will perform the Services in conformity in all material respects with its written procedures or as agreed upon by the parties, (ii) it will perform all Services in a professional and workmanlike manner, consistent with generally accepted industry standards and good commercial practices, and (iii) it will comply with all applicable federal, state and local laws, regulations and ordinances, be duly licensed and otherwise authorized to provide the Services, perform and satisfy all obligations that it owes to its employees and subcontractors, and remit all required payroll withholding payments to appropriate taxing authorities with respect to its employees.
b. DISCLAIMERS. WITH THE EXCEPTION OF THOSE EXPRESS WARRANTIES MADE IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY LAW, GRAVY DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Intellectual Property and Data Privacy:
a. Ownership. Gravy owns and reserves all right, title and interest in and to the software or technology it provides to Client (the “Software”), including any and all patent rights, copyrights, trademarks, service marks, trade secret, and other intellectual property and proprietary rights, as well as any improvements, modifications, and derivative works of the Software. Except for Client’s limited right to access and use the Software as expressly set forth in Section 7.b, no right, title, or interest in or to the Software, or any improvements, modifications, or derivative works, is transferred or licensed to Client.
b. License. To the extent that Client licenses any Software from Gravy, and subject to the terms and conditions of this Agreement, Gravy hereby grants Client a limited, fee-bearing, revocable, non-transferable, non-sublicensable, worldwide, non-exclusive right and license, solely for its own internal business purposes during the Term, to access and use such software or technology.
c. Data. Gravy may collect, compile, use, store, transfer, copy, and retain (collectively “Process”) information, such as prices, contractual terms, processes, tactics, discounts, and other such information, including information from third-party software and technology providers (“Applicable Data”) as necessary for Gravy to perform the Services in accordance with this Agreement. Client hereby grants to Gravy a non-exclusive, irrevocable, fully paid-up, royalty-free right and license to Process the Applicable Data for purposes of (i) system maintenance and performance testing; (ii) security and vulnerability risk assessments; and (iii) improving or modifying Gravy’s products or services. Gravy will store all Applicable Data in an aggregated manner such that it is not identifiable as to any person or entity as the source or origin of such data. Client represents and warrants that Client has appropriate rights to the Applicable Data sufficient to: a) allow Topic to Process the Applicable Data, and b) grant Gravy the rights specified herein.
d. Privacy. In connection with the performance of the Services, the Parties agree to comply with all applicable laws relating to data privacy, data security, or personal information. To the extent required under applicable law, the Parties shall execute and/or shall cause its affiliate(s) or contractor(s) to execute supplemental privacy and security terms, including but not limited to a data processing addendum, as required in Gravy’s sole judgment for the processing and/or transfer of personal data in accordance with applicable law.
e. Tools. Gravy retains all right, title and interest in its know-how, ideas, concepts, procedures, routines, techniques, methods, systems, processes, models, templates, tools, generalized features of the structure, sequence and organization of software, user interfaces, screen designs and the like, and any enhancements made to the foregoing while performing Services. Gravy may use within the scope of its business the general knowledge, skills and experience that are developed in the course of, or learned as a result of, the provision of Services (collectively, “Residuals”), provided that Residuals shall not include any information that is the Client’s Confidential Information.
f. Feedback. Client may, from time to time, submit or recommend to Gravy additional features, functionality, performance, comments, data, ideas, descriptions or other information (collectively, “Feedback”) that Gravy subsequently incorporates into any Gravy products or services. Gravy and its successors and assigns may freely use, copy, disclose, sublicense, distribute, display and exploit any Feedback in connection with any of its products or services in any manner without any obligation, payment, royalty or restriction based on intellectual property rights, confidentiality or otherwise. In accordance with the foregoing, Client hereby: (i) grants Gravy a worldwide, non-exclusive, royalty-free, perpetual right and license to use and incorporate such Feedback into any Gravy product or service; and (ii) acknowledges that any Gravy product or service incorporating such new features, functionality, or performance shall be the sole and exclusive property of Gravy and all such Feedback shall be free from any confidentiality restrictions that might otherwise be imposed upon Gravy pursuant to Section 5.
g. Reservation of Rights. Each Party reserves all rights not expressly granted to the other Party in this Agreement.
a. Client Indemnification of Gravy. Subject to Section 8.c, Client will indemnify and hold harmless Gravy and Gravy’s employees, directors, officers, representatives and agents from and against any and all liabilities and defend against losses, expenses, damages, acts or failures to act, attorney fees, court costs and costs incurred by Gravy relating to any claim or demand by a third party that is related to or arises from: (i) Client’s violation of applicable laws, rules, and regulations; or (ii) Client’s material breach of this Agreement. Notwithstanding the foregoing, Client’s indemnification obligations under this Section 8.a shall not apply to the extent such damages, costs, expenses or liabilities are caused by Gravy’s negligence or willful misconduct.
b. Gravy Indemnification of Client. Subject to Section 8.c, Gravy will indemnify and hold harmless Client and Client’s employees, directors, officers, representatives and agents from and against any and all liabilities and defend against losses, expenses, damages, acts or failures to act, attorney fees, court costs and costs incurred by Client relating to any claim or demand by a third party that is related to or arises from: (i) Gravy’s violation of applicable laws, rules, and regulations; or (ii) Gravy’s material breach of this Agreement. Notwithstanding the foregoing, Gravy’s indemnification obligations under this Section 8.b shall not apply to the extent such damages, costs, expenses or liabilities are caused by Client’s negligence or willful misconduct.
c. Procedures. Each Party’s (the “Indemnifying Party”) obligation to indemnify the other Party (the “Indemnified Party”) under Section 8.a or Section 8.b, respectively, are conditioned upon the Indemnified Party: (i) promptly notifying the Indemnifying Party of a claim or demand in writing no later than thirty (30) days after the Indemnified Party’s receipt of notification of such potential claim or demand; (ii) allowing the Indemnifying Party to assume sole control of the defense of such claim or demand and all related settlement negotiations; and (iii) providing the Indemnifying Party, at the Indemnifying Party’s request and expense, with the assistance, information and authority necessary to perform its obligations under this Section 8.c. Notwithstanding the foregoing, the Indemnified Party may participate in the defense of such claim or demand at its own cost, and no settlement or defense of a claim or demand by the Indemnifying Party shall include any admission or implication of wrongdoing on the part of the Indemnified Party without the Indemnified Party’s prior written consent (which consent may not be unreasonably delayed or withheld).
9. Limitation of Liability:
a. Exclusion of Consequential Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8 OR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY A PARTY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
b. Limitation of Direct Damages. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 8 OR BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS IN SECTION 5, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID OR OWED BY CLIENT OVER THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE LIMITATIONS OF THIS SECTION WILL APPLY TO ANY THEORY OF LIABILITY, INCLUDING THOSE BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND EVEN IF GRAVY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF ANY REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
10. Miscellaneous Terms:
a. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and merges and supersedes all prior and contemporaneous discussions and writings between them with respect to the contents hereof. If any provision (or part thereof) of this Agreement is determined by a court of competent jurisdiction as part of a final non-appealable ruling, government action or binding arbitration, to be invalid, illegal, or otherwise unenforceable, such provision shall be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder shall remain in full force and effect and bind the Parties according to its terms. This Agreement may be executed in multiple counterparts, all of which together will constitute one original document.
b. Publicity. Client agrees to allow Gravy to use and display Client’s logo for marketing purposes and further agrees to participate in a public-facing case study, pending Client’s final approval of content.
c. Waivers and Amendments. The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of this Agreement or to exercise any right hereunder shall not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance, and the same shall be and remain in full force and effect. No change, amendment or modification of any provision of this Agreement shall be valid unless in writing signed by both Parties.
d. Assignment. Neither Party may assign this Agreement, in whole or in part, without the other Party’s prior written consent (which will not be unreasonably withheld), except to any of its affiliates or in connection with any merger, consolidation, reorganization, sale of all or substantially all of its assets or similar transaction; provided that the assignee agrees in writing to be bound by all of the terms and conditions of this Agreement. Subject to the foregoing, this Agreement will be binding on and enforceable by the Parties and their respective successors and permitted assigns.
e. Notices. Any notice, communication or statement relating to this Agreement shall be in writing and deemed effective: (i) upon delivery when delivered in person; (ii) upon transmission when delivered by electronic mail; or (iii) when delivered by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service, to each Party at the address set forth above.
f. Governing Law and Jurisdiction; Attorney Fees. The rights and obligations of the Parties under this Agreement shall be governed by and construed under the laws of the State of New York without reference to conflict of law principles. Each Party consents to the exclusive personal jurisdiction of the state and federal courts located in the State of New York. In any legal proceeding relating to a dispute arising out of or relating to this Agreement, the prevailing Party shall be entitled to an award of legal fees and costs.
g. Relationship. The relationship between the Parties established pursuant to this Agreement is that of non-exclusive, independent contractors and no joint venture, partnership, agency, franchise or employment relationship will be deemed to exist between them.
Mail: Payment Saver, LLC dba Gravy, 8000 Avalon Blvd, Suite 100, Alpharetta, GA 30009
Email Address: email@example.com
Telephone Number: (770) 406-6128
Effective as of 03.01.2022