Terms and Conditions, Including a Mandatory Arbitration and Class Action/Jury Trial Waivers Clause
Last Revised: September 28, 2023
The Gravy mobile application (the “App”), along with the Gravy website (“Website”), including other associated apps and websites (e.g. white labeled sites for our Clients) is owned and operated by Gravy Technologies, Inc. (“Gravy,” “we,” “our,” or “us”). These Terms and Conditions (“Terms and Conditions” or “Agreement”) are intended to make you, our clients (“Clients”) aware of the terms and conditions of your use of our Websites and Apps and the products and services offered through the Apps and Websites (“Services”). The Apps and the Gravy Websites provide information about our programs and services (“Services”). These Terms and Conditions apply to any Websites or Apps where this Agreement is referenced or linked to.
Description of the Services. The standard Services are meant to provide consumers (“Users”) with a way to prepare for homeownership. Via our Services, Users agree to provide, and grant access to, financial and personal information to third-parties, such as Clients, lenders, real estate agents, or other providers of services and products that Users may be interested in (each, an “Authorized Third-Party”). The Services may also provide information relating to products or services of third-parties, including the Third-Parties (“Third-Party Offers”), as well as provide general tips, recommendations, and educational material.
THESE TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND US. PLEASE READ CAREFULLY THROUGH ALL SECTIONS OF THESE TERMS. YOUR ACCESS TO AND USE OF THE APP AND WEBSITE IS SUBJECT TO THESE TERMS AND ALL APPLICABLE LAWS AND WE RESERVE THE RIGHT TO TERMINATE YOUR ACCESS TO THE APP AND WEBSITE IF YOU VIOLATE THESE TERMS. BY DOWNLOADING THE APP, CLICKING ON LINKS WITHIN THE APP OR WEBPAGES BEYOND THE APP’S HOMEPAGE, BY VISITING THE WEBSITE, CLICKING ON LINKS ON THE WEBSITE, OR BY CLICKING ON A BOX OR ICON YOU AGREE TO THE TERMS OF THIS AGREEMENT WHETHER OR NOT YOU COMPLETE A TRANSACTION WITH OR USE SERVICES OF GRAVY AND WHETHER OR NOT YOU COMPLETE YOUR TRANSACTION OR USE SERVICES ON THE APP, WEBSITE, OR THROUGH OTHER CHANNELS, SUCH AS BY INTEGRATION, TELEPHONE, EMAIL, FACSIMILE OR OTHERWISE. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE APP OR WEBSITE, ANY SERVICES AVAILABLE THROUGH THE APP OR WEBSITE, OR ANY INFORMATION CONTAINED ON THE APP OR WEBSITE.
NOTICE OF MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVERS CLAUSE.
These Terms contain a mandatory (binding) arbitration and class action and jury trial waiver clause (collectively referred to as the “arbitration clause”). Except for certain types of disputes described in the arbitration clause below or where prohibited by applicable law, you agree that disputes between you and us regarding your use of the App, Website, or Services will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration. For more details, see section 15 below.
We may make changes to the content available on the App and Website at any time. We can change, update, add, or remove provisions of these Terms at any time by posting the updated Terms on the App and Website. We will make commercially reasonable efforts to notify you of any material changes to these Terms however we are not obligated to. You waive any right you may have to receive specific notice of such changes to these Terms with the exception that we will not amend the arbitration clause without giving you notice and an opportunity to opt out of such provision. By using the App and Website after we have updated the Terms, you are agreeing to the then-current Terms. You are responsible for regularly reviewing these Terms.
In addition to these Terms, your use of certain Services may be governed by additional agreements.
. Although it is not part of these Terms, we encourage you to read both policies to better understand how you can update, manage, access, and delete your information. You agree to electronic receipt of all Privacy Disclosures, as required by 16 C.F.R. part 313.
1. ACCESSING THE APP AND WEBSITE
We reserve the right to withdraw or amend the App and/or Website, and any Services or Materials we provide on the App and Website, in our sole discretion without notice. We will not be liable if, for any reason, all or any part of the App and Website is unavailable at any time or for any period. From time to time, in our sole discretion and without notice, we may restrict access to some parts of the App and/or Website, or the entire App and/or Website, to users, including registered users.
You are responsible for both:
• Making all arrangements necessary for you to have access to the App and Website.
• Ensuring that all persons who access the App and Website through your internet connection are aware of these Terms and comply with them.
To access the App and Website, or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the App and Website that all the information you provide is correct, current, and complete, and that you have the authority to provide such information to us.
To enroll in the Services, you may create an account with a username and password. You must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the App and Website or portions of the App and Website using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.
We have the right to disable any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any reason, including if, in our opinion, you have violated any provision of these Terms.
1.1 Security of Your Device
You have the sole responsibility for maintaining the safety, security, and integrity of the device you access the App and/or Website with. You agree not to leave the device unattended while logged into the App or Website and to log off immediately at the completion of each access by you. You agree not to provide any of your access information to any person. You shall bear the entire risk for any use thereof, whether you have authorized such use and whether or not you are negligent. If you permit other persons to use the device, login information or any other means to access the App and/or Website, you will be held responsible for any Services they engage in or transactions they undertake and we will not be liable for any damages resulting to you.
All payment obligations are non-cancelable and all amounts paid are nonrefundable. You will be advised of the amount of fees for the specific Service prior to purchasing. We reserve the right to charge for certain features or all the Services in the future.
We will notify you before any features or Services begin carrying a fee, or before the then-current fee changes to the extent you are already signed-up for those features or Services, and if you wish to continue using such features or Services, you must pay all of the applicable fees. You understand and agree that you are responsible for all charges and fees that your internet or wireless service provider may charge you for your use of the Services.
You shall be solely responsible for all sales and use taxes, network access fees, and regulatory and similar charges applicable to the Service, provided that in those jurisdictions in which Gravy is required to collect sales tax, applicable sales tax based on the bill-to address and the sales tax rate in effect at the time of purchase will be added to your total price, and all tax collected will be remitted to the appropriate taxing jurisdiction by Gravy or a third-party payment processing service. Gravy may require automatic payments by credit card or automated clearing house (ACH). All payments must be made in U.S. dollars.
If you choose, in your sole and absolute discretion, to terminate your relationship with Gravy by closing your Gravy account, there will be no fees or penalties assessed for termination. Notwithstanding the foregoing sentence, to the extent you owe Gravy money for features or Services at the time of termination, you will be obligated to pay Gravy for such features or Services and your indebtedness for such features or Services shall not be construed as a fee or penalty for termination. Accrued payment obligations will survive expiration or termination of this Agreement for any reason. Any amounts paid prior to a termination are nonrefundable, even if such amount constituted pre-payment for a specified term and such termination occurs prior to expiration of such term. We will honor your termination request within two business days of receipt of a request to cancel your Gravy account. To cancel your Gravy account, email us at email@example.com.
In addition to any other rights granted to Gravy under applicable law and/or this Agreement, Gravy reserves the right to suspend your access to the Service your account becomes delinquent and is uncured for a period of thirty (30) days. Delinquent invoices may be subject to interest of 1.5% per month on any outstanding balance, or the maximum amount permitted by law, whichever is less, from the date due, plus all expenses of collection. All fees with respect to the Service shall continue to accrue during any period User’s access to the Service is suspended.
3. PROPRIETARY RIGHTS
Unless otherwise specified in these Terms, all information and screens appearing on the App and Website are the sole property of Gravy or our subsidiaries and affiliates, and other parties. We provide content through the App and Website that is copyrighted and/or trademarked work of Gravy or our third-party licensors, suppliers, and service providers (collectively, the “Materials”). Materials may include documents, services, software, site design, text, graphics, logos, video, images, icons, and other content, as well as the arrangement thereof.
Subject to these Terms, we hereby grant you a limited, personal, non-exclusive and non-transferable license to use, view, print, display and download the Materials for the sole purpose of viewing them on a stand-alone personal computer or mobile device and to use the App and Website solely for your personal use. Except for the foregoing license and as otherwise required or limited by applicable law, you have no other rights in the App, Website, or any Materials and you may not modify, edit, copy, reproduce, create derivative works of, reverse engineer, alter, enhance or in any way exploit any of the App, Website, or Materials in any manner or for any purpose that would constitute infringement of our, our third-party licensors’, suppliers’, or service providers’, or the App’s or Website’s other users’ intellectual property rights. All rights not expressly granted herein are reserved.
If you breach any of these Terms, the above license will terminate automatically, and you must immediately destroy any downloaded or printed Materials.
You agree that we may contact you at any time via email, telephone (including SMS text messages), or via the App or Website, as applicable, to service your Gravy account. For emails, you can manage your notification preferences by referring to the instructions at the bottom of the email. For text messages, you can opt out of SMS messages by replying STOP.
By forwarding any content or communications to us through the App, Website, or by other electronic means, you thereby grant us a perpetual, royalty-free, world-wide, irrevocable, non-exclusive license to use, reproduce, modify, adapt, publish, translate, create derivative works from, redistribute, and display such content and communications in any form for the purposes of providing the Services and any purpose tangentially related to the Services. No compensation will be paid to you with respect to our or our sublicensees’ use of your communications. By providing or submitting content, you represent and warrant that you own or otherwise control all of the rights to your submitted content and communications as described in this section including, without limitation, all the rights necessary for you to submit the content and communications and grant the license above.
5. PERMITTED USES
By accessing or using the App and Website, you agree that:
• Your use of the App and Website is subject to and governed by these Terms;
• You will only access or use the App and Website and transact business with us if you are at least 18 years old;
• You will use the App and Website solely for its Services offered in the normal course of business;
• You will always act in accordance with the law, custom, and in good faith;
• You will comply with and be bound by these Terms as they appear on the App and Website each
time you access and use the App and Website;
• Each use of the App and Website by you indicates and confirms your agreement to be bound by these Terms; and
• These Terms are a legally binding agreement between you and us that will be enforceable against you.
You further agree to not use the App or Website in any way that:
• Changes or alters the App or Website, or content or Services that may appear on the App or Website;
• Impairs in any way the integrity or operation of the App or Website;
• Is in any way unlawful or prohibited, or that is harmful or destructive to anyone or their property;
• Transmits any advertisements, solicitations, schemes, spam, flooding, or other unsolicited email and commercial communications;
• Transmits any harmful or disabling computer codes or viruses;
• Harvests email addresses;
• Transmits unsolicited email to the App, Website, or to anyone whose email address includes the Gravy domain name;
• Interferes with our network services;
• Attempts to gain unauthorized access to our network services;
• Suggests an express or implied affiliation or relationship with us without our express written permission;
• Impairs or limits our ability to operate the App or Website, or any other person’s ability to access
and use the App or Website;
• Unlawfully impersonates or otherwise misrepresents your affiliation with any person or entity;
• Transmits or uploads violent, obscene, sexually explicit, discriminatory, hateful, threatening, abusive, defamatory, offensive, harassing, or otherwise objectionable content or images;
• Dilutes or depreciates our or any of our affiliates’ name and reputation;
• Transmits or uploads content or images that infringe upon any third party’s intellectual property rights or right to privacy; or
• Unlawfully transmits or uploads any confidential, proprietary or trade secret information.
This list of prohibited activities provides examples and is not complete or exclusive. We reserve the right to terminate access to your account and your ability to use the App and/or Website (or the Materials) with or without cause and with or without notice, for any reason or no reason, or for any action that we determine is inappropriate or disruptive to the App and/or Website or to any other user of the App, Website, and/or Materials. We may report to law enforcement or governmental authorities any actions that may be illegal, and may cooperate with any government investigations or examinations directly or indirectly related to any potentially illegal activity engaged in via the App or Website.
6. RELIANCE ON INFORMATION POSTED
The majority of the information presented on or through the App or Website is made available solely for general information purposes. Unless obligated by law, we do not warrant the accuracy, completeness, or usefulness of this general information. Any reliance you place on such general information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the App or Website, or by anyone who may be informed of any of its contents, unless we are otherwise liable under applicable law.
The App or Website may include content provided by third parties, including materials provided by third- party licensors, syndicators, aggregators, service providers, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by us, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Gravy. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties, unless we are otherwise liable under applicable law.
7. THIRD-PARTY LINKS
7. USER DATA
The Service allows certain messaging and sharing of information by Users (“User Data”). Where settings are available, Gravy will honor the choices Users make about who can see content or information, including their User Data. Gravy is not obligated to publish any information or content on the Service, including any User Data, and may remove it in Gravy’s sole discretion, with or without notice.
Users shall be solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of their data. Users warrant that they have the right to possess and use all data, including the right to disclose data to Gravy and use User Data in connection with the Service. To the extent relating to any Client or User, User represents and warrants that: (a) User has received all required consents or authorizations with respect to User Data referencing any individual before accessing, storing, or transferring to Gravy such User Data; (b) you shall use, store, and transfer all User Data in accordance with all laws applicable to your business (which may include, but is not limited to, the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338) (as amended from time to time, the “GLB Act”) and any state law equivalents of counterparts thereof and all regulations promulgated under any of them), and any terms or conditions imposed by any third party with respect to any Third Party Products.
User may not disclose information that such User does not have the right to disclose, including the information of any third party, including any Client, or violate the Intellectual Property Rights of others.
As between a User and Gravy, each User owns its User Data and any other content and information that such User submits or posts to the Service, subject to the following limited non-exclusive license granted by Users to Gravy:
A worldwide, transferable and sublicensable right to use, copy, modify, distribute, publish, and process, solely in connection with the Service and without any further consent, notice and/or compensation to any User or others, any User Data and other information and content provided by Users subject to the following limitations:
a. Users can end this license for specific User Data, information and content by deleting it from the Service, or generally by closing their account, except (a) to the extent shared with others as part of the Service and copied, re-shared or stored by those with whom it was shared and (b) for the reasonable time it takes to remove from backup and other systems.
b. Gravy will obtain User’s consent if Gravy wants to give others the right to publish such User’s content in any manner inconsistent with or outside the scope of the Service.
c. While Gravy may edit and make format changes to a User’s content (such as translating it, modifying the size, layout or file type or removing metadata) in connection with the Service, Gravy will not modify the meaning of such User’s expression.
Users acknowledge that Gravy’s stated purpose is to increase business opportunities for our Clients, including real estate agents and loan officers, by helping their respective clients prepare for homeownership. As a result, Users understand and agree that the foregoing limited non-exclusive license grants Gravy the right to share User Data relating to such Users with Clients in connection with the Service, subject to the same limitations set forth above.
8. ADDITIONAL TERMS FOR CLIENTS AND USERS
If you are a Client, you acknowledge and agree that the company with which you are employed or affiliated may have the right to control your access to the Service and to receive reports on your use of the Service. You further acknowledge and agree that the applicable administrator (“Administrative User”) may review your access to and use of the Service and take certain actions regarding your account. In the event of any dispute between you and the applicable Administrative User (or any person acting on behalf of such company), including, but not limited to, rights to User Data concerning any User, Gravy shall not be responsible for the resolution thereof, and Gravy shall be entitled to follow all reasonable instructions of the Administrative User with respect thereto.
The Service enables Clients to upload certain types of “Relationship Data” (e.g. information regarding consumers who previously were, currently are or may in the future become, clients of yours). Without limiting anything in these Terms, or otherwise, only the following types of Relationship Data are permitted:
i. Mutual Contact Lead Data. We will always endeavor to load “Mutual Contact Lead Data”, subject to our rights to refuse to load, or remove, User Data we believe violates these Terms or results in reputational risk or damage to our Service.
ii. Opt-In Lead Data. Prior to uploading any “Opt-In Lead Data” (e.g. information about leads with whom you have no prior contact but who have affirmatively “opted into” becoming a lead with you through acceptance of conspicuous terms of service that inform such lead about their actions and the consequences of opting in) to the Service, you must notify us that the information you are seeking to upload constitutes Opt-In Lead Data. We will always endeavor to load Opt-In Lead Data, but, in addition to our right to refuse to load, or remove, User Data we believe violates these Terms or results in reputational risk or damage to our Service, we may choose, at our discretion, to: (1) perform our own data quality assurance process on any such Opt-In Lead Data to ensure it is eligible to be uploaded to the Service; and/or (2) load Opt-In Lead Data over a period of time to enable us to monitor and react to any reputational risk any Opt-In Lead Data may pose to our Service.
Without limiting anything in these Terms, you are prohibited from uploading any information about any consumer or other individual with whom you have had no contact, or who has not affirmatively opted into becoming a lead or who may not have been aware of the consequences of their actions that resulted in them becoming a lead.
Without limiting the foregoing, Gravy reserves the right to remove any User Data, including, but not limited to, any Relationship Data, you upload or attempt to upload to the Service that Gravy believes violates these Terms or results in reputational risk or damage to Gravy’s Service.You may not release to any third party the results of the Service performed by or on your behalf for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without our prior written approval.
You shall not use the Service to: (i) send spam or duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
You may not create a false identity on Gravy (other than for the limited purpose of providing training to others or demonstrating how to use our Service), misrepresent your identity, create a Gravy profile for anyone else or use or attempt to use another’s account, override any security feature or bypass or circumvent any access controls or use limits of the Service, or use bots or other automated methods to access the Service. You may not imply or state that you are affiliated with or endorsed by Gravy without our express consent.
9. FEDERAL AND STATE LAWS
The App and Website are operated from the United States and is intended for U.S. residents only. The App and Website are not approved for distribution outside of the U.S. and non-U.S. residents should not rely or act upon the information contained within. When using the App or Website or when using any content provided by us, you must obey all applicable U.S. federal, state and local laws.
10. MINIMUM AGE
We do not allow persons under the age of eighteen (18) to use the App or Website. By using the App or Website, you represent and warrant that you are eighteen (18) years of age or over.
11. DISCLAIMER OF WARRANTIES
Your use of the App and Website are at your own risk. The Materials have not been verified or authenticated in whole or in part by us, and they may include inaccuracies or typographical or other errors. We do not warrant the accuracy or timeliness of the Materials contained on the App or Website. We have no liability for any errors or omissions in the Materials, whether provided by us, our licensors or suppliers or other users.
TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE PROVIDED HEREIN, THE INFORMATION AND SERVICES OFFERED ON OR THROUGH THE APP OR WEBSITE AND ANY REFERENCED THIRD-PARTY SITE ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ANY THIRD-PARTY GOODS OR SERVICES PROVIDED ARE SUPPLIED AS A CONVENIENCE TO YOU AND DO NOT CONSTITUTE SPONSORSHIP, AFFILIATION, PARTNERSHIP, OR ENDORSEMENT. TO THE FULLEST EXTENT ALLOWED BY LAW, WE DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE APP OR WEBSITE, CONTENT, OR OTHER POSTED MATERIALS ON THE APP OR WEBSITE IN TERMS OF ITS CORRECTNESS, ACCURACY, TIMELINESS, RELIABILITY OR OTHERWISE.
BY PROVIDING THE SERVICES ON THE APP AND WEBSITE, WE DO NOT IN ANY WAY PROMISE THAT THE SERVICES WILL REMAIN AVAILABLE TO YOU. WE ARE ENTITLED TO TERMINATE ALL OR PART OF ANY OF THE APP OR WEBSITE AT ANY TIME, IN OUR SOLE DISCRETION WITHOUT NOTICE TO YOU. IN FURTHERANCE OF THE FOREGOING, YOUR GRAVY REWARDS MAY BE TERMINATED AT ANY TIME DUE TO THE TERMINATION OF THE APP OR WEBSITE, IN RESPONSE TO YOUR TERMINATION OF USE OF THE APP OR WEBSITE, FOR ANY REASON, OR OTHERWISE, IN EACH CASE, IN OUR SOLE AND ABSOLUTE DISCRETION.
12. LIMITATION OF LIABILITY
WE CANNOT GUARANTEE THE APP OR WEBSITE WILL BE AVAILABLE 100% OF THE TIME BECAUSE PUBLIC NETWORKS, SUCH AS THE INTERNET, OCCASIONALLY EXPERIENCE DISRUPTIONS. ALTHOUGH WE STRIVE TO PROVIDE THE MOST RELIABLE APP AND WEBSITE REASONABLY POSSIBLE, INTERRUPTIONS AND DELAYS IN ACCESSING THE APP AND WEBSITE ARE UNAVOIDABLE AND WE DISCLAIM ALL LIABILITY FOR DIRECT AND INDIRECT DAMAGES WHICH MAY RESULT FROM SUCH PROBLEMS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIABILITY OF GRAVY AND ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES AND THIRD-PARTY SERVICE PROVIDERS WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE APP OR WEBSITE, THE MATERIALS, THE CONTENT OR SERVICES OBTAINED THROUGH THE APP OR WEBSITE, WHETHER BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF 1) THE AMOUNT RECEIVED BY GRAVY FROM YOU FOR THE SERVICES PURCHASED IN THE 12 MONTHS PRIOR TO THE DATE OF THE INCIDENT OR 2) FIFTY DOLLARS ($50).
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES FOR ANY USE OF THE APP OR WEBSITE, OR ON ANY OTHER HYPERLINKED WEBSITE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA OR OTHERWISE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You agree to indemnify, defend and hold harmless us and our affiliates, employees, agents, representatives and third-party service providers, for any and all claims, demands, actions, liability, fines, penalties and expenses that may arise from any of your acts or omissions in connection with your use of the App and Website.
14. INJUNCTIVE RELIEF
You acknowledge that we may be irreparably damaged if these Terms are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of these Terms by you, we shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of these Terms. By using the App or Website, you agree that the laws of the state of Delaware, without regard to principles of conflict of laws, will govern these Terms and any dispute of any sort that might arise between you and Gravy. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the state or Federal courts located in Missouri. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
15. MANDATORY ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVERS.
Most concerns can be resolved quickly and to your satisfaction by contacting us as set forth in the “Questions” section below.
In the event that we are not able to resolve a dispute, and with the exception of our right to seek injunctive relief as described above and, similarly, your right to seek individual injunctive relief in court, you hereby agree that either you or we may elect to arbitrate any dispute, claim, or cause of action (“Claim”) between you and us or any third parties arising out of use of the App, Website, the Services, and any other actions with us (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory) to be arbitrated on an individual (non-class) basis, to the extent allowed by law. However, both parties retain the right to seek relief in a small claims court (or an equivalent court) for a Claim within the scope of its jurisdiction so long as the small claims action does not seek to certify a class, combine the Claims of multiple persons, recover damages in excess of the limit for a small claim under applicable state law or is not transferred, removed, or appealed from small claims court to any different court.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. ADDITIONALLY, ANY ARBITRATION OF A CLAIM WILL BE ON AN INDIVIDUAL BASIS, AND, THEREFORE, YOU UNDERSTAND AND AGREE THAT YOU ARE WAIVING THE RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER IN A CLASS ACTION LAWSUIT. AS PART OF THIS WAIVER, YOU AGREE THAT YOU WAIVE THE RIGHT TO ACT AS A PRIVATE ATTORNEY GENERAL IN AN ARBITRATION; THAT EXCEPT AS OTHERWISE PROVIDED IN THIS ARBITRATION CLAUSE, CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO CONDUCT A CLASS- WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE- PARTY ARBITRATION.
You and we agree that your use of the Services involves interstate commerce, and that this arbitration clause shall be interpreted and enforced in accordance with the Federal Arbitration Act (FAA) set forth in Title 9 of the U.S. Code to the fullest extent possible, notwithstanding any state law to the contrary, regardless of the origin or nature of the Claims at issue. The arbitrator must follow, to the extent applicable: (1) the substantive law of the state in which we entered into the transaction giving rise to this arbitration clause; (2) the applicable statutes of limitations; and (3) claims of privilege recognized at law. The arbitrator will not be bound by federal, state or local rules of procedure and evidence or by state or local laws concerning arbitration proceedings.
If either you or we elect to arbitrate a Claim, the dispute shall be resolved by binding arbitration administered under the applicable rules of the American Arbitration Association (“AAA”). Either you or we may elect to resolve a particular Claim through arbitration, even if the other party has already initiated litigation in court related to the Claim, by: (a) making written demand for arbitration upon the other party, (b) initiating arbitration against the other party, or (c) filing a motion to compel arbitration in court.
If this is a consumer-purpose transaction, the applicable rules will be the AAA’s Consumer Arbitration Rules. The applicable AAA rules and other information about arbitrating a Claim under AAA, including how to submit a dispute to arbitration, may be obtained by visiting its website at https://www.adr.org/ or by calling 1-800-778-7879. If AAA will not or cannot serve as the administrator of the arbitration, and you and we cannot then agree upon a substitute arbitrator, you and we shall request that a court with proper jurisdiction appoint an arbitrator. However, we will abide by the applicable AAA rules regardless of the forum. Arbitration shall be conducted in the county and state where you accepted these Terms, you reside, or another reasonably convenient place to you as determined by the arbitrator, unless applicable laws require another location. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Except as provided in applicable statutes, the arbitrator’s award is not subject to review by the court and it cannot be appealed. The parties will have the option to request and receive a statement of reasons for the arbitration award.
If you elect to file the arbitration, and this is a consumer-purpose transaction, you will pay the filing fee to the extent required by AAA’s Consumer Arbitration Rules but not to exceed the cost of filing a lawsuit. Any amount above what it would cost you to file a lawsuit, we will pay. All other arbitration fees and expenses shall be allocated to us according to AAA rules. Except for the arbitration fees and expenses, each party shall pay its own costs and fees incurred (including attorneys’ fees), unless the arbitrator allocates them differently in accordance with applicable law. This paragraph applies only if this is a consumer- purpose transaction.
If any provision in this arbitration clause is found to be unenforceable, it shall be stricken from the clause and the remaining provisions shall remain fully enforceable. If a Claim seeks public injunctive relief and, after exhaustion of all appeals, a court determines that a provision in the clause restricts such Claim and, therefore, is invalid with respect to that Claim, the Claim seeking public injunctive relief will be determined in court. However, any Claim seeking money damages shall be arbitrated at the election of either party (unless such Claim is an exclusion as set forth in this clause). The parties will request that the court stay the Claim for public injunctive relief until the arbitration award pertaining to any Claim seeking money damages has been entered in court.
Except with respect to the foregoing paragraph relating to public injunctive relief, if the class action limitation is invalid, then this arbitration clause is invalid in its entirety.
This arbitration clause will survive the termination of your use of the App, Website, the Services, and any other actions with us.
You may reject this arbitration clause within thirty (30) days of accepting the Terms by emailing us at firstname.lastname@example.org and including in the subject line “Rejection of Arbitration Provision.”
16. MISCELLANEOUS PROVISIONS
If any term or provision in these Terms is found to be void, against public policy, or unenforceable by a court of competent jurisdiction and such finding or order becomes final with all appeals exhausted, then the offending provision shall be deemed modified to the extent necessary to make it valid and enforceable. If the offending provision cannot be so modified, then the same shall be deemed stricken from these Terms in its entirety and the remainder of these Terms shall survive with the said offending provision eliminated. This paragraph does not apply to the arbitration clause.
Governing Law and Venue.
These Terms shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the United States of America. Without waiving the foregoing arbitration clause, you agree that any dispute arising from or relating to the subject matter of these Terms including but not limited to if you opt out of the mandatory arbitration provision shall be governed by the exclusive jurisdiction and venue of the state and Federal courts of St. Louis, Missouri, except where the jurisdiction and venue are mandated by applicable Assignment. We may freely assign our obligations and rights under these Terms, including all Personal Information in our possession which we have collected during your use of the App and Website.Headings.
Condition and section headings are for convenience of reference only and shall not affect the interpretation of these Terms.Typographical Errors.
Information on the App and Website may contain technical inaccuracies or typographical errors. We attempt to make the App’s and Website’s postings as accurate as possible, but we do not warrant the content of the App and Website is accurate, complete, reliable, current, or error-free.17. QUESTIONS
If you have any questions or comments about these Terms or the App or Website, please contact us by email at email@example.com
. You also may write to us at:
Gravy Technologies, Inc.
119 S Main Street
St. Charles, MO 63301