Poppy Point of Sale Terms and Conditions

This Poppy Point of Sale Terms and Conditions(the “Terms”), effective as of the date execution of the Poppy Point of Sale Order Form (the “Order Form”) by and between Gravity Payments, Inc., a Washington corporation with offices located at 5601 22nd Ave NW, Suite 200, Seattle, Washington 98107 (“Gravity”), and the person or entity identified on the Order Form (“Customer”). Gravity and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

The Parties agree as follows:

Definitions.
1. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Gravity in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
2. “Authorized User” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to these Terms and (ii) for whom access to the Services has been purchased hereunder.
3. “Consumer Data” means data and information related to the customers of Customer that is gathered by Customer through use of the Services.
4. “Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
5. “Effective Date” the date of execution of the Order Form.
6. “Gravity Data” means data and information related to Gravity, including, without limitation, personal information related to its employees.
7. “Gravity IP” means the Services and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Gravity IP includes Aggregated Statistics and any information, data, or other content derived from Gravity’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.
8. “Hardware” means the tangible equipment supplied by Gravity to Customer in accordance with the Order Form.
9. “Services” means the Poppy Bridal software service offering described in the Order Form, or such other software or related services provided to Customer by Gravity.
10. “Third-Party Products” means any third-party products described in the Order Form provided with or incorporated into the Services.
Access and Use.
1. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms, Gravity hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 13(g)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Gravity shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
2. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services , in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services ; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software , including any copy thereof; or (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
3. Reservation of Rights. Gravity reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Gravity IP.
4. Suspension. Notwithstanding anything to the contrary in these Terms, Gravity may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Gravity reasonably determines that (A) there is a threat or attack on any of the Gravity IP; (B) Customer’s or any Authorized User’s use of the Gravity IP disrupts or poses a security risk to the Gravity IP or to any other customer or vendor of Gravity; (C) Customer, or any Authorized User, is using the Gravity IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Gravity’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Gravity has suspended or terminated Gravity’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Gravity shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Gravity shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Gravity will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
5. Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Gravity may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between Gravity and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Gravity. Customer acknowledges that Gravity may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Gravity may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
Hardware
1. Hardware Shipment. Gravity shall ship any purchased Hardware to Customer within thirty (30) days of the date Gravity receives full payment for the Hardware as described on the Order Form. Customer understands that all Hardware purchases must be paid in full prior to shipment of the Hardware to Customer.
2. Hardware Returns. Subject to Gravity’s approval, Customer may return Hardware, if Customer notifies Gravity in writing of such desire to return within thirty (30) days of the date of delivery of the Hardware. In the event Gravity accepts Customer’s request for return and Customer returns the Hardware to Gravity in new condition, Gravity shall provide Customer a credit of the original purchase price on Gravity’s account that Customer may use for purchase of any other available products or Services requested by Customer. In the event Customer returns the Hardware to Gravity in less than new condition, Gravity will determine, at Gravity’s sole discretion, whether to accept and what credit shall be given for the return. If Gravity does not accept the return Customer shall have no claim against Gravity.
Customer Responsibilities.
1. General. Customer is responsible and liable for all uses of the Services resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
2. Third-Party Products. Gravity may from time to time make Third-Party Products available to Customer. For purposes of these Terms, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in Order Form. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products. Customer acknowledges that (i) some of the Services require the use of Third-Party Products, and may not function properly or at all without them; (ii) Gravity is not responsible for providing alternative Third-Party Products to Customer to ensure proper function of the Services if Customer chooses not to use the Third-Party Products; and (iii) Customer is still responsible for full payment of any and all fees charged by Gravity, even if Customer chooses not to make use of a required Third-Party Product and said fees shall not be pro-rated or reduced as the result thereof.
3. Data Protection. In the course of using the Services, Customer may create, receive, or have access to Consumer Data and/or Gravity Data. Customer shall be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, use, or disclosure of such information in its possession by Customer’s employees and Authorized Users. Customer Data and Gravity Data shall be deemed the Confidential Information of Gravity. In recognition of the foregoing, Customer shall:
  1. promptly notify Gravity of any unauthorized disclosure of the Customer Data and/or Gravity Data and fully cooperate with Gravity in coordinating a response to such disclosure;
  2. keep and maintain all Customer Data and Gravity Data in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure;
  3. not create, collect, receive, access, or use Customer Data and Gravity Data in violation of law;
  4. use and disclose Customer Data and Gravity Data solely and exclusively for the purposes for which the data, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Customer Data and Gravity Data for Customer’s own purposes except as authorized by this Agreement; and
  5. not, directly or indirectly, disclose Customer Data and Gravity Data to any person other than its employees that have a need to know about the data, without Customer’s prior written consent.
Service Levels and Support; Sandbox Environments.
1. Service Levels. Subject to the terms and conditions of these Terms, Gravity shall use commercially reasonable efforts to make the Services available.
2. Support. The access rights granted hereunder entitle Customer to the support services described on the Order Form.
3. Sandbox Environments. During the Term, and at its sole discretion, Gravity may make sandbox environments, or other isolated test environments, of certain Services available for Customer’s use. Such sandbox environments shall be considered part of the Gravity IP subject to the warranty disclaimer of Section 9(a). The sandbox environments may be modified, discontinued, suspended, updated, or otherwise altered by Gravity at any time, with or without notice, and use of such sandbox environments is at Customer’s own risk. The sandbox environments may or may not be accessible on Customer’s equipment, and may or may not provide accurate data. Any Customer Data uploaded to a sandbox environment may be deleted or lost at any time with or without warning or notice from Gravity. In addition to all disclaimers and limitations within these Terms, Gravity shall have no duty, responsibility, or liability to Customer resulting from or related to Customer’s use or inability to use the sandbox environments, including, without limitation, loss of data. Any Feedback provided by Customer related to the sandbox environment shall be governed by Section 8(c) herein.
4. Remote Access. In order to provide support and troubleshooting services, Gravity may from time to time or on Customer request need to remotely login to devices owned or operated by Customer. Customer hereby consents to employees or agents of Gravity remotely accessing Customer devices solely for such support and/or troubleshooting purposes.
Fees and Payment.
1. Fees. Customer shall pay Gravity the fees (“Fees”) as set forth in the Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in Order. If Customer fails to make any payment when due, without limiting Gravity’s other rights and remedies: (i) Gravity may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Gravity for all costs incurred by Gravity in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, Gravity may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.
2. Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is 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 or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Gravity’s income.
3. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of these Terms with respect to matters necessary for accurately determining amounts due hereunder. Gravity may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by these Terms, provided that if such inspection and audit reveals that Customer has underpaid Gravity with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of these Terms and for a period of two years after the termination or expiration of these Terms.
Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of the Terms, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
1. Beta Testing. From time to time, in Gravity’s sole discretion, Customer may be invited to participate in beta tests of Gravity’s Services. Customer shall treat all information provided during or related to such beta testing as Confidential Information of Gravity, subject to the restrictions of Section 7. Customer shall not make any public statements related to the beta testing, including, without limitation, statements pertaining to or revealing Customer’s invitation or participation in a beta test, or statements regarding the contents or quality of the beta test or Services being tested, without Gravity’s express written permission. Any Feedback provided by Customer related to a beta test shall be governed by Section 8(c), and such Feedback shall be deemed the Confidential Information of Gravity.
Intellectual Property Ownership; Feedback.
1. Gravity IP. Customer acknowledges that, as between Customer and Gravity, Gravity owns all right, title, and interest, including all intellectual property rights, in and to the Gravity IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
2. Customer Data. Gravity acknowledges that, as between Gravity and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Gravity a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Gravity to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Gravity by mail, email, telephone, or otherwise, suggesting or recommending changes to the Gravity IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Gravity is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Gravity on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Gravity is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Gravity is not required to use any Feedback.
Warranty Disclaimer.
1. THE GRAVITY IP AND HARDWARE ARE PROVIDED “AS IS” AND GRAVITY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. GRAVITY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. GRAVITY MAKES NO WARRANTY OF ANY KIND THAT THE GRAVITY IP, HARDWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Indemnification.
1. Gravity Indemnification.
  1. Gravity shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with these Terms, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Gravity in writing of the claim, cooperates with Gravity, and allows Gravity sole authority to control the defense and settlement of such claim.
  2. If such a claim is made or appears possible, Customer agrees to permit Gravity, at Gravity’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Gravity determines that neither alternative is reasonably available, Gravity may terminate these Terms, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and shall refund to Customer a pro-rata portion of fees paid based on use of the Services as of the date of termination.
  3. This Section 10(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Gravity or authorized by Gravity in writing; (B) modifications to the Services not made by Gravity; (C) Customer Data; or (D) Third-Party Products.
2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Gravity’s option, defend Gravity from and against any Losses resulting from any Third-Party Claim related to unauthorized disclosure or use of the Consumer Data or Gravity Data, or that the Customer Data, or any use of the Customer Data in accordance with these Terms, infringes or misappropriates such third party’s intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by these Terms; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Gravity or authorized by Gravity in writing; or (iv) modifications to the Services not made by Gravity, provided that Customer may not settle any Third-Party Claim against Gravity unless Gravity consents to such settlement, and further provided that Gravity will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
3. Sole Remedy. THIS 10 SETS FORTH CUSTOMER’S SOLE REMEDIES AND GRAVITY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
Limitations of Liability. IN NO EVENT WILL GRAVITY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER GRAVITY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL GRAVITY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO GRAVITY PURSUANT TO THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term and Termination.
1. Term. The initial term of these Terms begins on the Effective Date and, unless terminated earlier pursuant to these Terms’ express provisions, will continue in effect for the subscription term stated on the Order Form (the “Term”).
2. Termination. In addition to any other express termination right set forth in these Terms:
  1. Gravity may terminate these Terms, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Gravity’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(b) or 7;
  2. either Party may terminate these Terms, effective on written notice to the other Party, if the other Party breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
  3. either Party may terminate these Terms, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
3. Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Gravity IP and, without limiting Customer’s obligations under 7, Customer shall delete, destroy, or return all copies of the Gravity IP and certify in writing to the Gravity that the Gravity IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
4. Survival. Any right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement, including, without limitation, Sections 4, 6, 7, 8, 9, 10, 11, and 13.
Twilio Integration. Some features of our Services may allow Customer to use features from Twilio (www.twilio.com) within the Services. Gravity makes no representations or warranties as to the services provided by Twilio. All use of Twilio services shall be subject to the Twilio terms (found at https://www.twilio.com/en-us/legal/tos), and any use of an integration between the Twilio services and Gravity’s Services shall be subject to Twilio’s terms and the terms of our Services as applicable, including, without limitation, these Terms. In order to use the Twilio features on our Services, Customer must keep their Twilio account in good standing as determined by Twilio. Customer agrees that they shall only use the Twilio/Poppy integration for communications related to transactions or possible transactions, and not use it for mass marketing or other bulk message purposes.
1. In addition to the disclaimer of warranties herein, Gravity shall not be responsible or liable in any way, under any theory or claim, for any damage resulting from Customer’s inability to access or use Twilio. Customer shall defend, indemnify, and hold Gravity harmless from and against any claims related to Customer’s violation of any terms entered into with Twilio.
2. Gravity and/or Twilio may discontinue, modify, upgrade, or otherwise alter the integration between Twilio and the Services at any time for any reason without notice or any liability to Customer.
Miscellaneous.
1. Entire Terms. These Terms, together with the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms and the Order Form, these Terms shall govern unless specific intent to supersede these Terms is stated in the Order Form. Any additional, inconsistent, or different terms or conditions contained in documents submitted to Gravity by or on behalf of Customer at any time, whether before or after the date hereof, shall be deemed a material alteration and not a rejection of these terms and conditions, and are hereby expressly rejected by Gravity. These terms and conditions shall be deemed accepted by Customer without any such additional, inconsistent or different terms and conditions, except to the extent expressly accepted by Gravity in a writing signed by Gravity.
2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of these Terms (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
4. Amendment and Modification; Waiver. No amendment to or modification of these Terms is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in these Terms, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
5. Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
6. Governing Law; Submission to Jurisdiction. These Terms is governed by and construed in accordance with the internal laws of the State of Washington without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Washington. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Washington in each case located in the city of Seattle and County of King, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Gravity. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
8. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
9. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 7 or, in the case of Customer, Section 2), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.