Terms Of Service
These Grain Terms of Service (“Terms”) are made between Grain Finance BV., or any of its affiliates or subsidiaries as indicated in the applicable Order (hereafter “Grain”, “Company”, “us”, “we” or “our”) and the entity entering an Order referencing this Agreement (hereafter “Customer”, “you” or “your”). Each of Customer and Grain may be referred to as a “Party” or the “Parties” collectively). The term “Order” shall mean any written quote, order, or other ordering document acceptable to, acknowledged or executed in writing by Company and Customer, either online or offline, (these Terms collectively with an applicable Order, referenced terms, agreements, and policies hereafter the “Agreement”).
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICE. BY ACCESSING THE SERVICES YOU DECLARE AND REPRESENT THAT YOU ARE OVER THE AGE OF 18 YEARS OLD AND AT LEAST OF THE AGE OF MAJORITY IN YOUR APPLICABLE JURISDICTION. IF YOU DO NOT AGREE TO THESE TERMS OR ARE NOT AUTHORIZED TO BIND THE ENTITY ON BEHALF OF WHICH YOU ARE ACTING, PLEASE DO NOT ACCESS OR USE THE SERVICE; BY ACCEPTING THESE TERMS OR ACCESSING OR USING THE SERVICES, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THE AGREEMENT (HOWEVER THEY WERE ACQUIRED INCLUDING WITHOUT LIMITATION THROUGH AN AUTHORIZED RESELLER OR ONLINE MARKETPLACE) ON BEHALF OF THE ENTITY ON BEHALF OF WHICH YOU ARE ACTING, AND YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO DO SO.
This Agreement governs your access and use of Grain Services, as well as any Transactions (as defined below) made or submitted by you, whether executed or not, unless explicitly stated otherwise by Grain, and the legal relationship between you and Grain. Additional terms and conditions relating to specific services or products may be provided by Grain from time to time and will apply only if you use such specific services or products. Each Transaction you perform using any of our Grain Services forms a separate contract between you and Grain and is subject to the terms and conditions of the applicable Transaction, as indicated in the Order, subject to this Agreement. With respect to each Transaction Grain will issue a hedging confirmation (conforming with the applicable Order terms and conditions) and the Transaction will be carried out and executed in accordance with said hedging confirmation note. In the event of a direct conflict between the terms of Order, and the terms of this Agreement, and the terms of the hedging confirmation note, the following order of precedence shall apply: (a) Order applicable to the Transaction; (b) this Agreement. If a discrepancy occurred between a hedging confirmation note and the terms of the applicable Order, the Order shall take precedence, and as a sole and exclusive remedy the Parties will settle (including by set off by Grain if necessary) between them any differences resulting from aid discrepancy.
YOU ACKNOWLEDGE AND AGREE THAT GRAIN IS NOT PROVIDING ANY ADVICE, CONSULTATION, ENDORSEMENT, PROFESSIONAL OR FINANCIAL ADVICE, SERVICES, OR RECOMMENDATION IN RELATION TO OR AS PART OR ANY GRAIN SERVICES, TRANSACTION(S), FINANCIAL DECISIONS, OR THE USE OR NON-USE THEREOF. CUSTOMER’S USE OF GRAIN SERVICES OR SUBMISSION OF TRANSACTION(S) IS ENTIRELY AT CUSTOMER’S OWN RISK. GRAIN DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR ANY DECISION THE CUSTOMER OR ANYONE ON ITS BEHALF MAKES IN RELATION TO OR IN RELIANCE UPON THE GRAIN SERVICES (INCLUDING ANY SUBMISSION OR ACCEPTANCE OF ANY PARTICULAR TRANSACTION). YOU SHOULD SEEK PROFESSIONAL ADVICE ON THE RISKS INVOLVED IN THE USE OF THE GRAIN SERVICES, INCLUDING SUBMISSION OR CARRY OUT OF ANY PARTICULAR TRANSACTION.
GRAIN SERVICES AND ACCOUNT
1.1 Grain Services. Subject to the terms of the Agreement, Grain may agree to provide you with the following services, as may be offered by Grain from time to time (together, “Grain Services”): (i) ability to carry out Forward Transactions (as defined below) for the benefit of Customer or Customer Affiliates only (except with Grain’s prior approval as set forth expressly in an applicable Order, for the benefit of Customer’s clients) with Company’s forward foreign exchange services through Company proprietary platform (“Platform”) or via a dedicated Grain API (application programming interface) (“API”); (ii) Customer’s-side dashboard and online applications as may be offered from time to time, for information, and technology-based insights and risks assessments through the Platform; and (iii) any other related services as may be set forth in an applicable Order, all subject to the terms and conditions of the Agreement.
1.2 Account. To use certain Grain Services, you need to create an account by registering to our Platform (“Account”). You are responsible for any and all activity executed on or through your Account and for maintaining the confidentiality and security of your Account log-in details and other confidential information therein. We are not liable for any acts or omissions by you or any third party in connection with your Account. You must immediately notify us at support@grainfinance.co if you know or have any reason to suspect that your Account or log-in details have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account (under your or any other name) if we have previously canceled, closed or otherwise suspended your Account, or banned/suspended you from use of any Grain Services, unless we provide written consent otherwise.
1.3 Grain Services Availability. Grain will make all reasonable efforts to maintain the Grain Services the availability of the Grain Services; however, we do not warrant or guarantee that the Grain Services will operate and/or be available at all times without delay, disruption or interruption, or that it will be error-free. Grain will not be liable for any loss as a result of the unavailability or disconnection of Grain Services or parts thereof. In such an event, you agree that your only resource is to cease using the Grain Services.
1.4 Use Restrictions. Customer shall not, and shall not allow anyone on its behalf nor any third party to: (i) modify, translate, reverse engineer, decompile, disassemble, download, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, create derivative works from, or offer for sale any information contained on, or obtained from or through the Grain Services, in whole or in part; (ii) defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Grain Services; (iii) derive the source code, algorithms, structure or organization underlying the Grain Services; (iv) transmit or otherwise make available in connection with the Grain Services any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component; (v) interfere with or disrupt the operation of the Grain Services or the servers or (as applicable) networks that host Grain API, or disobey any requirements, procedures, policies, or regulations of such servers or networks; (vi) sell, license, provide as a service bureau for the benefit of others, or otherwise exploit for any commercial purposes any use of or access to the Grain Services except as expressly permitted under this Agreement; (vii) create a database by systematically, repeatedly or otherwise downloading, caching and/or storing all or any portion of the content, data or information made available in or from the Grain Services, or other use the Grain Services in a manner competing with Company’s business; (viii) use the Grain Services for any illegal or fraudulent purposes (including, without limitation, money laundering, tax evasion, terrorist financing, or any other illegal activities); (ix) use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through Grain Services; (x) use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify Grain Services; (xi) exploit Grain Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation; (xii) not use the Grain Services for any speculative or investment purpose, or in any way not expressly permitted by this Agreement; and (xiii) use, make available, or offer the Grain Services other than in accordance with such operating processes and procedures as may be instructed by the Company from time to time.
1.5 Individual Forward Transactions (Forward Contracts)
1. Grain grants the opportunity to Customer to carry out cross-currency transactions and lock in the currency exchange rate of future payments in a particular currency rate (as may be available from time to time) at a specified price and on a definite future date (“Transaction(s)” or “Forward Transaction(s)”). Each forward transaction submitted through Grain Services by or through Customer, Customer’s login credentials provided by Grain, shall form a separate contract. Each Forward Transaction is subject to mutual approval. Grain may refuse to accept any request to carry out requested Forward Transaction at its discretion without providing reason, and Company will have no liability to the Customer as a result of doing so.
2. In the event that you fail to fully settle Transaction(s) payment, Grain may deduct any losses or costs from any funds held in your Account, and any overdue shortfall will be charged interest pursuant to applicable law. Subject to applicable law, you hereby acknowledge and agree that Grain can, in its sole discretion at any time and without notice, set off any sum standing to the credit of you in your Account against any payments, costs, charges, or other liabilities which you owe to the Company with respect to the Grain Services. If you are unable to fully settle the Transaction(s) payment, any and all losses, costs, damages, liabilities, and other amounts shall be borne by you.
1.6 Information and Documents. Customer undertakes to supply or otherwise make available Grain (i) any and all information, and reasonable assistance, as may be reasonably requested and instructed by Grain and/or its authorized representatives or third party service providers in connection with the performance of the actual or prospective Forward Transaction diligence, analysis, assessment, audit, verification, investigation, and similar procedures that Grain deems, at its sole discretion, necessary for the provision of the Grain Services (“Information”), as well as any Information required under any applicable law, regulations, including without limitation anti-money laundering regulations, applicable export and sanctions laws and regulations, and any relevant guidelines and instructions (including, without limitations, BSA/AML, KYC or KYB processes) or any information advisable in order to meet or conduct the foregoing. All Information you supply to Grain in relation to the Grain Services shall be retained complete, accurate, up to date, and truthful.; and (ii) such accurately completed forms, documentation, or other information in a form and format approved by Grain, as may require from time to time (“Documents”). Notwithstanding the foregoing, nor anything else in this Agreement, the Customer (and not Grain) is and shall be responsible for verifying the accuracy, completeness, and/or authenticity of any data furnished by the Customer to Grain.
1.7 Unauthorized or incorrect transaction details. Customer shall notify Grain in writing (by email to Grain’s primary business contact person in the ordinary course of business) as soon as is reasonably practicable after becoming aware of any circumstances, which may reasonably result in unauthorized, fraudulent, inaccurate, or incorrect booking or transaction submitted to the Grain Services, or if Grain is otherwise made aware of any such unauthorized, fraudulent, inaccurate, or incorrect use of the Grain Services (“Error Details”) Grain shall make commercially reasonable efforts to resolve such matters as Grain deems appropriate, and in accordance with applicable laws, and the Customer shall cooperate with Grain and fulfill Company’s reasonable instructions related to such event. All communication with Grain with respect to any Error Details (including, without limitation, any notice thereof) shall be made between Grain and the Customer in writing. Notwithstanding the foregoing, the Customer (and not Grain) shall be liable for any acts or omissions, transactions, or trades made in relation to such Error Details (including, without limitation, any delay in providing notice and delivery of a notice with insufficient or partial information). Grain has no liability to Customer for any unauthorized or incorrectly executed transactions, unless statutory law stipulates otherwise. Insofar legally permitted, Grain hereby expressly disclaims and shall not be liable to Customer for (i) the execution or failure to execute a payment, or for the defective execution of a payment, if the information Customer provides is incorrect; (ii) errors, mistakes, or non-performance arising from failure to process the payment correctly. In either case, Grain will make reasonable efforts to recover the funds involved in the payment. Customer will be responsible for the costs incurred by Grain for any such recovery.
1.8 Customer agrees to (i) reasonably cooperate with Grain, provide the required information, and perform such acts as reasonably required in order to comply with applicable laws and regulations, requests of local and foreign governmental authorities and enforcement agencies applicable to Parties’ engagement (including, the provision of Information and Documents); (ii) notify Grain immediately about any abnormal, suspicious, or unusual behaviors, and other activities or objectives in relation to the Grain Services.
1.9 Customer agrees that it will not export or re-export, directly or indirectly, the Grain Services and/or other information or materials provided by Grain hereunder, to any country for which the United States, the European Union, or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Grain Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country (“Sanctioned Territory”), or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List (“Sanctioned Person”) . Customer agrees and understands that Grain may deny services or transactions that are or suspected to be related to such countries. Customer represents and warrants that Customer, its Affiliates, or each beneficiary of the Forward Transactions carried out via the Grain Services (if any) are (a) not located in or doing business from any such Sanctioned Territory, not (b) are actual or suspected Sanctioned Person. Customer, on its own behalf and on behalf of any beneficiary of a Transaction, further agrees that no activity conducted through its Account will involve, or be suspected of involving, any such Sanctioned Country, Sanctioned Person(s), or is otherwise prohibited. You are responsible for and hereby agree to comply at your sole expense with all applicable United States, European Union and other applicable export laws and regulations.
1.10 Services and Materials of Third Parties. The Customer acknowledges that the Grain Services include, may rely on, or otherwise facilitate or act as merely a conduit to functionalities, infrastructures, services, and/or operations which are made available by third parties (“Third Party(ies)”) such as, for example, currency exchange brokers, and financial banking institutions. Such Third Parties’ functionalities, infrastructures, services, and/or operations are not operated or controlled by Grain. Notwithstanding anything else in this Agreement, Grain makes no warranties or representations express or implied, as to the quality, capabilities, operations, performance, or suitability of said Third Parties or their functionalities, infrastructures, services, and/or operations and disclaims all liability resulting from or related to the foregoing, including any effect on the in the Grain Services.
1.11 Suspension of Access. Company is entitled, at its sole discretion, to suspend access to the Platform, Account, API, and /or Grain Services, or otherwise restrict functionality thereof, if (i) Customer is in breach of this Agreement, by providing Customer with prior reasonable written notice; or (ii) the Customer (or anyone on its behalf) is using the Grain Services in a manner that may cause Grain legal liability or disrupt the Grain Services. Grain may continue any such suspension or restriction as Grain deems necessary at its reasonable discretion. Grain reserves the right to decline to provide the Services without specifying a reason.
1.12 Grain will have no liability for the non-completion of or a delay in completing any Forward Transaction in relation to (i) circumstances that prohibit or restrict the execution or performance of a Forward Transaction, including, without limitation, abnormal or unforeseeable circumstances beyond Grain’s reasonable control; (ii) applicable laws, regulations or Rules; (iii) occurrence of errors by Third Parties. Costs and losses arising from the cancellation of a Forward Transaction will be charged to, and payable by, the Customer. Grain will have no liability for the non-completion of, cancellation, or delay in completing any Forward Transaction resulting from or relating to Customer’s unavailability to fully settle the payment at the rates locked in the applicable transaction. In such event, Grain will cancel/close the transaction, and any loss or costs incurred by Grain will be charged and payable by the Customer. Further, each of the following constitutes an event of a breach ("Event"): (i) Customer’s failure to make any payment when due under the Transaction, or to perform any other provision or material requirement of any Transaction; (ii) insolvency, or circumstances that suggests that the User transfers all or substantially all its assets to another entity; (iii) false or misleading information made available by or on behalf of Customer, including without limitation unreported or delay in reporting about any Error Details; (iv) Company’s estimations in its sole discretion that Customer’s ability to perform its obligations with respect to a Transaction are harmed or affected. At any time following such an Event Grain may provide the Customer with notice and designate a date for the termination and liquidation of any or all the Customer’s Transactions ("Event Closing Date"). Upon the Event Closing Date, all Transactions will terminate, and an amount equal to the sum of the aggregate values upon termination of all Transactions, determined by Grain in a commercially reasonable manner, will be payable (whether by payment, set off, or otherwise) to Grain.
1.13 Customer Acknowledgments. Customer agrees that: (i) any use of the Grain Services is at the Customer’s own risk; (ii) the Grain Service has not been tailor-made to meet the Customer’s individual or specific requirements and/or financial needs; and (iii) Customer’s personnel who use the Grain Services are duly authorized to act on Customer’s behalf. Customer acknowledges and agrees that Grain is not providing Customer with any advice in relation to the use of the Grain Services (for instance whether to proceed or not proceed with a particular transaction, or the merits of any particular Forward Transaction or its possible implications) and that Customer’s use of the Grain Services is Customer’s decision and responsibility, based solely on Customer’s own judgment. Grain accepts no responsibility or liability for any decision made in relation to Grain Services, and specifically, without limitation, Grain will not be liable for any loss of opportunity or other loss in relation to the movement of exchange rates around the time of any transaction.
PARTIES RESPONSIBILITIES.
2.1 Company Responsibilities. Company shall perform the Grain Services during the Term with due diligence and in a prudent and expeditious manner, materially in accordance with the parameters, schedules, and timeline provided by Grain and agreed upon by the Parties from time to time.
2.2 Customer Responsibilities. Customer and each of its affiliates have, and will maintain all required rights, powers, authority, permits, licenses, consents, permissions, and authorizations to enter into this Agreement, make use of the Grain Services, and perform under this Agreement. Customer acknowledges that the applicable operating rules, regulations, manuals, policies and procedures, promulgated by any regulatory authority or third-parties service providers (“Rules”), need to be met before Grain provides the Grain Services under this Agreement. Customer and Grain agree to cooperate with each other in order to meet such requirements. Customer will use commercially reasonable measures to monitor activity on Customer’s systems and services for any fraud or potential fraud. Partner shall be responsible for any losses resulting from fraudulent information provided by Customer to Grain, and any fraudulent activity by Customer and Customer’s personnel or any third party.
2.3 The Parties hereby agree that: (a) Grain’s obligations hereunder may be performed by Grain’s Affiliate, including certain support services, as applicable; and (b) a Customer Affiliate may execute an Order with respect to the Grain Services hereunder, provided that Customer shall remain liable for each Customer Affiliate compliance with the terms of this Agreement. In such event, any reference to “Customer” in this Agreement shall refer to such Customer Affiliate, as applicable. For the purpose of this Agreement, “Affiliate” means, with respect to either Party, any entity controlling, controlled by or under common control with, such Party. The term “control” will mean the possession, directly or indirectly, of the power to direct or cause the direction of the activities, management or policies of such entity, whether through the ownership of voting securities or by contract.
PAYMENT
3.1 The Order will set forth (i) the fees and other amounts and payments due and payable to Grain in consideration for the Grain Services, (ii) certain security interest to be provided by Grain to Customer in connection with the provision of the Grain Services under this Agreement, and (iii) additional payment terms and related agreed terms and conditions regarding to the Grain Services. Unless otherwise provided, all fees due and/or payable to Grain in connection with any transaction shall be fully remitted regardless of any default, delay, or shortfall by Customer.
3.2 All amounts payable by the Customer to Company hereunder are exclusive of any sales, use and other taxes or duties, however, designated (collectively, “Taxes”). The Customer shall be solely responsible for payment of any and all Taxes, except for those Taxes based on the income of Grain. The Customer will not be entitled to withhold any Taxes from amounts due to Grain hereunder.
3.3 Grain will endeavor to include the full payment amount for the provision of the Grain Services to the Customer as reflected in the Order. To the extent that there are costs/payments beyond Grain’s control placed by third parties, they will be passed on to, and payable by, the Customer. Where such costs/payments are foreseeable, Grain shall notify the Customer of these costs/payments in advance.
OWNERSHIP RIGHTS; FEEDBACK
4.1 Grain owns all right, title and interest in and to the Grain Services, the Platform and content therein, including without limitation their “look and feel” (e.g., text, graphics, images, logos) as well as any information or data relating to the Grain Services usability, functionality, financial performance, and benchmarking, and any and all derivative works and enhancements thereof, including any and all intellectual property rights therein. Any rights not expressly granted herein are withheld and shall remain with Grain. You agree that the Company and/or its licensors own all rights, titles, and interests in and to Grain Services (including any and all intellectual property rights therein), and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with Grain Services and its content, including, without limitation, the exclusive right to create derivative works. You may not, without our prior written consent and the consent of any other relevant rights owners, broadcast, republish, upload to a third party, transmit, post, distribute, display in public, or change in any way the Grain Services for any purpose. The Company’s name, Company’s logo, and all related names, logos, product, branding, and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on Grain Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
4.2 As between the Parties, Customer owns the content and data resulting from the Customer’s use of the Grain Service (“Customer Content”). Customer hereby grants Grain, during the Term, a limited, non-exclusive, non-assignable, non-transferable, royalty-free, fully paid up, worldwide license to use the Customer Content for the purpose of provision of the Grain Services. Further, Customer hereby grants Grain a royalty-free, fully paid up, worldwide, unlimited, and irrevocable right and license to use anonymize, aggregate, and/or de-identify Customer Content in a manner that also does not identify the Customer as the source of such information, for the purpose of Grain’s research and development and enhancement of Company’s products and services.
4.3 In the event that Customer provides Grain with any suggestions, comments or other feedback relating to the Grain Services (collectively, “Feedback”), such Feedback shall be provided “as is” without any warranty or responsibility by Customer. Grain shall be free to use, disclose, reproduce, license, distribute, and otherwise exploit the Feedback, and Customer hereby grants to Grain a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully sublicensable and transferable license to use and incorporate into its products and services any such Feedback.
REPRESENTATIONS
5.1 Each party represents and warrants that (i) these terms of the Agreement constitute a legal, valid and binding obligation, enforceable against it and in accordance with these terms, and (ii) its execution and delivery of the terms and its performance hereunder will not violate any other obligation, rights, applicable law, rule or regulation.
SHARING INFORMATON WITH AUTHORITIES
6.1 Grain may be required to provide information to relevant legal, law enforcement, or regulatory authorities in respect of use of the Grain Services, including, without limitation, where Grain has grounds to suspect any form of illegal activity or in response to a request from such authorities. Customer hereby agrees that the provision of information by Grain in such circumstances will not constitute a breach of this Agreement (including without limitation, Company’s confidentiality obligations or other obligations in respect of the of Customer’s data).
6.2 Grain may defer acting on Customer instructions where (i) Grain (or any third party service provider on its behalf) has not been able to satisfactorily verify necessary details, (ii) Customer failed to provide Grain with the information requested for, or in relation to, the performance of the Grain Services, (iii) Grain have grounds to suspect any form of illegal or criminal activity, or (iv) Grain is requested to do so by a legal, law enforcement or regulatory authority. To the extent that Customer’s instructions are deferred by Grain pursuant to this section, Grain will not be liable to Customer for any costs or losses that might incur as a result of such deferral.
TERM AND TERMINATION.
7.1. This Agreement shall become effective on the earlier of (i) the mutual execution by Customer and Grain of an Order; or (ii) the effective date set forth in the Order, and unless earlier terminated in accordance with this section, shall remain in effect for such term as specified in the Order (the “Term”). Upon expiration of an Order (the “Initial Term”), the Order shall automatically renew for successive 12 months renewal terms (each, a “Renewal Term”), unless either Party provides the other Party with written notice of its intent not to renew at least sixty (60) days prior to the expiration of the then-current term.
7.2 Either Party may terminate this Agreement by providing ninety (90) days prior written notice to the other Party. In the event of termination without cause by the Customer, all Order(s) then-in-effect shall remain in full force and shall be carried out by the Parties in accordance with their terms and the terms of this Agreement, which shall be deemed to extend with respect to said Orders, until the last to expire Order.
7.3 Grain may suspend the performance or terminate this Agreement if the Customer materially breaches this Agreement and fails to cure such breach, if curable, within thirty (30) days after receiving written notice clearly specifying the breach.
7.4 Effect of Termination. Any termination of this Agreement shall also terminate the rights and permits granted thereunder to Customer. Upon termination or expiration of the Agreement, other than as expressly permitted in this Agreement: (a) Customer and anyone on its behalf will immediately cease using the Grain Services; (b) Transactions that were placed and confirmed by Grain before the termination or expiration of the Agreement will not be affected and shall be carried out per their terms and this Agreement; and (c) each Party shall cease using the other Party’s Confidential Information and delete all such Confidential Information in its possession or under its control, except to the extent required for record-keeping or as required by applicable law or Rules. Any amount that is due to Grain under this Agreement and/or Order(s), together with accrued interest (if any), will be paid by the Customer to Grain in full immediately upon termination (except with respect to ongoing Transactions which will be paid when due, regardless of the termination’s effective date). Grain will promptly notify the Customer in writing of the amount owed to Grain and such amount shall become properly due and payable. Further, the Customer shall be responsible for recovering Grain for any costs and expenses incurred by Grain in connection with the settlement and processes taken in connection with the enforcement of such payment obligations, including reasonable legal expenses.
7.5 Survival. In the event of any expiration or termination of this Agreement and/or any Order, any provisions hereof which expressly or by their nature are required to survive such expiration or termination in order to achieve their purpose, shall survive the expiration or termination of this Agreement. Notwithstanding the expiration or termination of this Agreement, the terms and conditions of this Agreement shall continue to apply to any Order that is in effect as of the date of such expiration or termination, until the expiration of such Order in accordance with its terms.
7.6 Remedies. Unless otherwise expressly limited in this Agreement, in the event of breach by one Party, the other Party will be entitled to exercise any and all rights and remedies available to it at law or in equity, whether concurrently or separately, and the exercise of one remedy will not be deemed an election of such remedy or preclude the right to exercise any other remedy. Without limiting the generality of the foregoing, Company may offset any amounts that Grain may incur under this Agreement against any fees owed to Grain and not yet paid by the Customer.
CONFIDENTIALITY
Each party acknowledges that it may have access to certain confidential information of the other party (“Confidential Information”). Confidential Information will include all information in any form that under the circumstances of its disclosure, should reasonably be considered confidential, including but not limited to trade secrets. Each party agrees that it will not use Confidential Information of the other party in any way, except as expressly required for the purposes of the Agreement, nor will it disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary on a need to know basis) any of the other party’s Confidential Information and it will take reasonable precautions to protect the confidentiality of such information. Confidential Information shall not include any information that (i) is publicly known, (ii) was in the prior possession of a party and obtained through lawful means, (iii) was disclosed to a party by a third party without breaching any duty of confidentiality and (iv) was independently developed without using Confidential Information.
DISCLAIMERS AND LIMITATION OF LIABILITIES
9.1 Except as expressly set forth in section 5 above, the Customer acknowledges and agrees that the Grain Services, including any support services, are provided on an “AS IS” “AS AVAILABLE” basis, without any warranties of any kind, express or implied, including but not limited to warranties of use, merchantability or fitness for a particular purpose or function. Grain disclaims and makes no representations or warranties as to the accuracy, quality, availability, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of any content, data or information available on, or communicated through, the Grain Services (collectively “Content”). Grain does not warrant that the operation of the Grain Services is secure, accurate, complete, uninterrupted, without error, or free of viruses, worms, other harmful components, or other program limitations. Grain expressly disclaims, and the Customer hereby expressly waives all other warranties of any kind whatsoever, express, implied, and statutory. GRAIN DISCLAIMS RESPONSIBILITY FOR ANY DECISIONS, ACTS, OR OMISSIONS TAKEN BY OR ON BEHALF OF CUSTOMERS BASED ON OR IN RELATION TO THE GRAIN SERVICES. Customer acknowledges and agrees that Grain provides no representation or warranty that the Grain Services provided hereunder will meet any particular requirements or meet the expectations of financial gain or income.
9.2 GRAIN AND ITS BANKING CUSTOMERS AND SERVICE PROVIDERS DO NOT, EITHER EXPRESSLY OR IMPLIEDLY, ENDORSE, RECOMMEND, OR IN ANY MANNER ASSUME ANY RESPONSIBILITY OR LIABILITY FOR ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN IN RELIANCE ON OR DERIVED FROM THE USE OF THE GRAIN SERVICES, NOR DOES GRAIN AND ITS SERVICE PROVIDERS ASSUME ANY RESPONSIBILITY FOR ANY LOSS, INJURY AND/OR DAMAGES INCURRED AS A RESULT OR IN CONNECTION WITH THE USE OF THE GRAIN SERVICES. The customer acknowledges and agrees that grain is not providing any advice in relation to the use of the grain services (including, without limitation, whether to proceed or not proceed with a particular transaction, the advantages of any specific forward transaction, or the implications of any forward transaction). as such, grain shall have no responsibility or liability for any decision made in relation to the grain services and/or any forward transaction, and in particular, grain will not be liable for any loss of opportunity or other loss or cost in relation exchange rates and changes thereof.
9.3 IN NO EVENT SHALL A PARTY, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND ANY OF THE ITS AFFILIATES BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, RESULTING FROM OR ARISING OUT OF THE GRAIN SERVICES, LOSS OF GOODWILL, DATA OR PROFITS, THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT AND ANY OTHER ACT OR OMISSION OR BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE CONDUCT OF PARTNER, USERS ON ITS BEHALF, ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
9.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL GRAIN’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS THAT WERE ACTUALLY PAID BY GRAIN TO THE CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING ANY SUCH CAUSE FOR LIABILITY. GRAIN’S MAXIMUM AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO ANY FORWARD TRANSACTION WILL BE LIMITED TO THE SPECIFIC AMOUNT OF THE APPLICABLE FORWARD TRANSACTION. THE FOREGOING LIMITATIONS OF SECTION 9 (DISCLAIMER; LIMITATION OF LIABILITIES) WILL NOT APPLY TO LIABILITY CAUSED BY GRAIN’S WILLFUL MISCONDUCT, OR FRAUD.
INDEMNIFICATION.
10.1 Indemnification by Grain. Company shall defend, indemnify and hold the Customer and their respective officers, directors, employees, agents, contractors, successors, and assigns (“Customer’s Indemnified Parties”), harmless from and against any and all losses, fines, penalties, costs, liabilities, claims, damages, lawsuits, actions, and expenses (including without limitation reasonable attorneys’ fees) incurred by the Customer’s Indemnified Parties in connection with a third-party claim which was finally awarded by a court of competent jurisdiction (or in a final settlement agreement consented to by Grain and Customer’s Indemnified Parties) that the Services infringes upon a patent, copyright, trademark, or other intellectual property rights of such third party (“IP Claim”).
10.2 Indemnification by the Customer. Customer shall defend, indemnify and hold Grain and its affiliates and their respective officers, directors, employees, agents, contractors, successors, and assigns (the “Indemnified Parties”) harmless from and against any and all damages, losses, fines, penalties, costs, and other amounts (including reasonable attorney’s fees and expenses) arising from or in connection with claims, demands, investigations, and causes of actions by third parties (each a “Claim”) to the extent such Claim is based on or arises from or relates to (i) negligent or intentional acts or omissions caused by Customer, its affiliates, and the respective officers, directors, employees, agents, contractors, successors and assigns; (ii) failure of the Customer or any of Customer’s personnel to comply with applicable laws; (iii) any claims for financial or other kind of damages arising out of any decision made or action taken or not taken by Customer in reliance on the use of the Grain Services; (v) Customer failure to meet its obligations relating to Information and Documents, including any failure of the Customer to provide accurate and complete information.
10.3 Indemnification Process. The indemnification obligations of either Party hereunder, are subject to the indemnified party’s (i) prompt written notice to the indemnifying party of the relevant indemnifiable claim immediately upon becoming aware of it or of any threat thereof, (ii) provision of sole control of the defense and settlement of such relevant indemnifiable claim (provided that the indemnifying party may not settle any indemnifiable claim unless such settlement unconditionally releases the indemnified party of any and all liability and does not require the indemnified party to admit any wrongdoing), and (iii) provision to the indemnifying party of all reasonable assistance, at indemnifying party’s expense.
10.4 Notwithstanding anything to the contrary, Grain will not indemnify Customer nor any Customer’s Indemnified Parties for IP Claim, damages, or liabilities arising from (i) the use of the Grain Services, or any part thereof by the Customer in combination with any other hardware and/or software not authorized for such use by Grain or not in accordance with the terms of this Agreement or Company’s reasonable instructions, if the relevant IP Claim would not have occurred but for such use; (ii) the modification, repair or adaptation of the Grain Services, or any part thereof other than by Grain, if the relevant IP Claim would not have occurred but for such modification, repair or adaptation; or (iii) failure of the Customer or any of its personnel to comply with the terms of this Agreement or any applicable documentation provided to the Customer by Grain; (iv) Third Parties services/products.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Grain Services and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
PUBLICITY. Notwithstanding, either Party may, during the Term of this Agreement, refer to the other Party in its website, promotional and marketing materials (including by using the other Party’s name and logo) as its Customer, subject to the prior written consent of the other Party (that shall not be unreasonably withheld).
PRIVACY POLICY. Our Privacy Policy describes how we handle the information you provide to us when you use Grain Services. For an explanation of our privacy practices, please visit our Privacy Policy located at https://www.grainfinance.co/privacy-policy.
ARBITRATION; LAW; VENUE
14.1 Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
14.2 Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including Grain Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered as follows: (A) in the event that Customer is located in the US, the arbitration will be conducted by JAMS under its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. The seat of the arbitration will be in New York, New York and the governing law shall be the state and federal laws applicable in New York, without regard to or application of conflicts of law rules or principles. (B) If Customer is located outside of the US, arbitration shall be conducted under the rules of the London Court of International Arbitration (LCIA) then in effect (such rules being deemed incorporated by reference into this section as of the date of this Agreement). Arbitration will be handled by a sole arbitrator in accordance with the LCIA Rules. The seat of the arbitration will be in London, England,and the governing law shall be the laws of England and Wales, without regard to or application of conflicts of law rules or principles. Judgement on the arbitration award may be entered in any court that has the competent jurisdiction.
14.3 Injunctive Relief. You agree that a breach of this Agreement will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and notwithstanding the provisopn of section 14.2., the Company shall be entitled to seek equitable relief before the court of competent jurisdiction, in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
MISCELLANEOUS. Grain reserves the right to make changes and modifications to the Platform and/or Grain Services at any time and from time to time. We may modify this Agreement from time to time, in which case we will update the “Last Revised” date at the top of this Agreement. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the Platform. However, it is your sole responsibility to review this Agreement from time to time to view any such changes. The updated terms and conditions will be effective as of the time of posting, or such later date as may be specified in the updated terms and conditions. Your continued access or use of Grain Services after the modifications have become effective will be deemed your acceptance of the modified terms and conditions. Customer may not assign any of the rights or obligations granted hereunder, voluntarily or by operation of law (including without limitation in connection with a merger, acquisition, or sale of assets) except with the express written consent of Company, and any attempted assignment in violation of this paragraph is void. Company may freely assign any and/or all of its rights or obligations granted hereunder, without prior consent of Customer to any affiliate of Company or otherwise in connection with a merger, acquisition, or sale of assets of the Company and/or of the in connection with a merger, acquisition, or sale of assets or the Customer. This Agreement does not create or imply any partnership, agency, or joint venture. No waiver by either Party of any covenant or right under this Agreement will be effective unless memorialized in a writing duly authorized by such Party. If any part of this Agreement is determined to be invalid or unenforceable by a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect. Payment services for Grain are provided by TransferMate Limited. If you have questions about these terms, please contact us by email at support@grainfinance.co or at Nieuwezijds Voorburgwal 162, 1012SJ, Amsterdam, The Netherlands. Last modified August 28, 2025