GRAINCHAIN TERMS OF SERVICE AGREEMENT
1.1 Access and Use. GrainChain grants to Customer, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, revocable, limited right to permit Customer’s employees and contractors (“Authorized Users”) during the term, solely for Customer’s internal business purposes to (a) install, execute and use the Applications, in object code, on computers and/or mobile devices (as applicable) owned or controlled by Customer (“Authorized Devices”); to integrate, execute and use the APIs solely to the extent necessary to enable Third Party Applications (defined in Section 1.4 below) to integrate with the Platform, and (c) access and use the Platform, over the internet, through GrainChain’s online web-portal and/or Applications (as applicable); in each case, solely for Customer’s internal business purposed and in accordance with the applicable user manuals and/or documentation for the Software and/or Platform (the “Documentation") and subject to any usage limitations or parameters specified by GrainChain. Customer may reproduce and use, during the term of this Agreement, a reasonable number of copies of the Documentation in support of the exercise of the license granted in this Section 1.1.
1.2 Restrictions. Customer will not, and will not permit any third party (including any Authorized Users) to: (a) reproduce or use the Platform, Software, or the Documentation except to the extent permitted in Section 1.1; (b) modify, translate, or create derivative works of the Services (or any part thereof) or decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure or source code form of the Platform and/or Software; (d) assign, share, timeshare, sell, rent, lease, sublicense, distribute, grant a security interest in, or otherwise transfer the Services (or any part thereof), or the Customer’s limited right to use the Services; (e) export the Services; (f) remove, alter, or obscure any proprietary notices or labels of GrainChain or is Suppliers in the Platform, Software, or Documentation; (g) interfere with or disrupt the integrity or performance of the Services (or any part therefor), or any system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Services; (h) attempt to gain unauthorized access to the Services (or any part thereof), or its related systems or networks; (i) frame or utilize framing techniques to enclose the Services or any portion thereof; (j) use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Platform, Software, content, or the personal information of others without GrainChain’s prior written permission or authorization; (k) impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity; (l) provide or transmit any goods or commodities or other content or materials that is false, or violates any contract, rules or policies, including, without limitation, those that govern the use of Authorized Devices, as directed by the applicable wireless carrier and/or mobile device manufacturer; or (m) violate any applicable local, state, national or international law in Customer’s use of the Services. GrainChain reserves all rights and licenses not expressly granted to Customer in Section 1.1 and no implied license is granted by GrainChain.
1.4 Third-Party Integrated Services. Customer acknowledges that the Platform and Software may enable or assist Customer to access and interact with products, services, applications, or websites made available by third parties that are integrated by Customer using the APIs, which, for the avoidance of doubt, includes the Dwolla Platform (“Third-Party Applications”). Customer’s access and use of any Third-Party Applications are at Customer’s own risk. Any use of Third-Party Applications is governed solely by the terms and conditions of such Third-Party Applications (and Customer agrees to comply with all such terms and conditions), and any contract entered into, or any transaction completed via any Third-Party Application, is between Customer and the relevant third party, and not GrainChain. GrainChain makes no representation and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such Third-Party Application or any transactions completed and/or any contract entered into by Customer and any such third party.
1.5 Open Source Software. The Software and/or Platform may contain third party open source software components ( “Open Source Components” ). Such Open Source Components are not licensed under this Agreement, but are instead licensed under the terms of the applicable open source license. Customer’s use of each Open Source Component is subject to the terms of each applicable license which are available to Customer on request from GrainChain. Notwithstanding any provision herein to the contrary, Customer is solely responsible for its compliance with such licenses. As used in this Agreement, the defined terms “Software” and “Platform,” do not include Open Source Components.
1.6 Changes and Modifications. GrainChain reserves the rights to either temporarily or permanently modify, suspend or discontinue the Services (or any part thereof) with or without notice. Customer agrees that GrainChain will not be liable to Customer or to any third party for any modification, suspension or discontinuance of the Services (or any part thereof).
2. SMART-CONTRACTS; TRANSACTIONS; DISPUTES
2.1 Smart-Contracts. The Service enables buyers (a “Buyer” ) and sellers (“Sellers” ) of certain commodities to enter into smart-contracts that enable a transaction protocol that automatically executes, controls and/or documents the transaction events and actions, for example, purchase price, quality control standards, and quantity, according to the terms of the contract specified and mutually agreed upon by the Buyer and/or Seller for the purchase and/or sale of the goods and/or commodities (each, a “Smart-Contract” ). Each Smart-Contract will become binding upon Customer and the other parties to the Smart-Contract upon the acceptance and approval of the Smart-Contract by Customer and each party through user-interface of the Service. A Smart-Contract may only be terminated upon the mutual agreement of all parties to the Smart-Contract or as otherwise specified in the terms and conditions of the Smart-Contract.
2.2 Transactions. Customer acknowledges and agrees that once Customer and all other parties to the Smart-Contract accept and approve the Smart-Contract, the Smart Contract will automatically execute each condition, transaction, event, and action, including without limitation, the release and transfer of payment, specified in the Smart-Contract (each, a “Transaction” ) in accordance with the terms and conditions of the Smart Contract. CUSTOMER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT Transactions executed in accordance with the Smart-Contract are irreversible REGARDLESS OF ANY TERMINATION OR EXPIRATION OF THE SMART-CONTRACT AFTER SUCH TRANSACTIONS HAVE BEEN EXECUTED. GrainChain cannot and will not be liable under any circumstances for any Transactions made pursuant to a Smart-Contract between Customer and any other user of the Service. GrainChain has no control over, or liability, and Customer is solely responsible, for the delivery, quality, safety, legality or any other aspect of the goods and/or commodities that Customer may purchase or sell using the Services to or from a third party (including other users of the Service). Without limiting the foregoing, to the extent Customer is purchasing goods or other commodities pursuant to a smart-contract entered into in connection with the service, Customer acknowledges and agrees that upon fulfillment of the terms and requirements of a smart-contract entered into between Customer that the funds for such purpose will be automatically and irreversibly transferred from CUSTOMER’S bank account to the seller, and CUSTOMER hereby authorizes such THE PLATFORM TO EXECUTE SUCH TRANSFER OF FUNDS.
2.3 Disputes. Customer understands and agrees that Customer’s and its Authorized Users’ interactions and dealings with other users of the Services, are solely between Customer and such other user. Customer acknowledges and agrees that any problems or disputes between Customer and another user with respect to any interactions, dealings, and/or communications must be resolved solely between Customer and the applicable user. GrainChain is not responsible for any loss, harm or damage of any sort incurred as a result of any such interactions or dealings, and GrainChain has no obligation to become involved in any resulting dispute. CUSTOMER, ON BEHALF OF ITSELF AND ITS SUCCESSORS, ASSIGNS, REPRESENTATIVES, EMPLOYEES, AGENTS, CLIENTS, AND ANYONE ELSE CLAIMING BY OR THROUGH CUSTOMER (“customer parties”), HEREBY EXPRESSLY RELEASE, DISCHARGE, AND HOLD GRAINCHAIN AND ITS EMPLOYEES, AGENTS, REPRESENTATIVES, SHAREHOLDERS, OFFICERS, DIRECTORS, AFFILIATES, CONTRACTORS, SUCCESSORS OR ASSIGNEES (THE “RELEASED PARTIES”) HARMLESS FROM, AND WAIVE ANY AND ALL CLAIMS (INCLUDING BUT NOT LIMITED TO CLAIMS FOR PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH), demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes. If customer or any Customer party is a California resident, Customer shall and hereby does waive, on behalf of itself and the customer parties, California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
3. CUSTOMER OBLIGATIONS.
3.2 Accounts. In registering an Account, Customer agrees to provide and maintain up to date information that is true, accurate, current, up to date, and complete. Customer agrees that Customer will not (a) create an Account using a false identity or fictitious name or information, and/or (b) create an Account or use the Services if Customer has been previously removed or banned by GrainChain from use of the Services, or any part thereof. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s password for the Account. Customer is solely responsible for any activity originating from the Account, regardless of whether such activity is authorized by Customer. Customer agrees to notify GrainChain immediately of any unauthorized use of the Account. GrainChain reserves the right to limit the number of Accounts that can be created from a computer or mobile device and the number of computer or mobile devices that can access an individual Account.
3.3 Authorized Users. Customer agrees that it shall not permit any person other than Authorized Users to access and use the Services, and shall ensure that Authorized Users use the Services solely in accordance with this Agreement. Customer acknowledges and agrees that Customer is solely responsible for the use of the Services by Authorized Users, and any breach of this Agreement by any Authorized User will be deemed a breach by Customer.
3.4 Authorized Devices. Customer acknowledges and agrees that in order to use the Applications, Customer and its Authorized Users must have a compatible Authorized Device. Customer is solely responsible for determining whether or not it’s and/or its Authorized Users’ Authorized Device is or is not compatible with the Application and GrainChain makes no representations or warranties whatsoever regarding the Application and compatibility with any computer or mobile device. Customer further acknowledges and agrees that Customer is solely responsible for any fees or charges incurred from use of the Application by Customer and/or its Authorized Users through Authorized Devices, including, without limitation, any mobile phone provider charges for SMS, text, or data usage or services.
3.5 Representations and Warranties. Customer represents and warrants that: (a) Customer has full power and authority to enter into this Agreement and to consummate the transactions and perform its obligations contemplated hereby; (b) any information submitted by Customer to set up Customer’s account with GrainChain and/or Dwolla is true, complete, and accurate; (c) will only be transacting on the Service with legally-obtained funds that belong to Customer; (d) will not be furthering, performing, undertaking, engaging in, aiding, or abetting any unlawful activity through Customer’s relationship with GrainChain or through the use of the Services; (e) will not use the Services for illegal purposes, including money laundering of criminal proceeds, transfer or receipt of payment for planning, preparation or commitment of crime, for financing the terrorism and illegal trade; (f) will not use the Services (or any part thereof) for any purpose prohibited by this Agreement or in any manner that could damage, disable, overburden, or impair GrainChain; and (g) will comply with all applicable laws, rules, and regulations, including but not limited, any laws, rules and regulations pertaining to securities and capital market legislation, anti-money laundering and counterfeiting terrorism, consumer protection laws, financial promotion laws, and privacy and data security.
3.6 Indemnity. Customer will defend at its own expense any claim or action against GrainChain, or its affiliates, directors, employees or contractors, brought by a third party or governmental entity, and will indemnify and hold harmless GrainChain from and against all costs (including reasonable attorneys’ fees) and damages incurred by GrainChain in any such claim or action, to the extent that the action is based on: (a) Customer’s or any of its Authorized breach of this Agreement, including, without limitation, Customer’s breach of its representation and warranties under this Agreement; (b) Customer’s or any of its Authorized Users’ breach of any license and/or terms and conditions governing any Third Party Applications; (c) allegations that the Customer’s activities in connection with the use of the Services hereunder, violate any applicable laws, rules or regulations, including, without limitation, any anti-money laundering and/or counter-terrorism laws; (d) Customer Data or a violation of any applicable privacy law, rule or regulation by Customer, except to the extent caused by GrainChain’s use of Customer Data that exceeds the scope of the license granted in Section 3.1; (e) Authorized User claims, (f) Smart-Contracts or the goods and/or other commodities purchased or sold pursuant to any Smart-Contract, or the execution or Transactions under any Smart-Contract; and/or (g) claims arising from the exclusions set forth below in Section 8. The foregoing obligations are conditioned on GrainChain promptly notifying Customer in writing of such action, giving Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperating and assisting in such defense. Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of GrainChain or requires GrainChain to contribute to the settlement without GrainChain’s prior written consent. GrainChain may participate and retain its own counsel at its own expense.
4.1 Fees. In consideration for the Services provided by GrainChain hereunder, GrainChain shall receive a fee equal to a percentage of the gross fees paid or received by Customer under the Smart-Contract (the “Fees”) for each Smart-Contract entered into by Customer and executed through the Service. The Fees will be automatically collected and paid by either the Buyer or Seller as specified in the applicable Smart-Contract. Notwithstanding the foregoing, if Customer is not the party under the Smart-Contract obligated to pay the Fees to GrainChain, Customer hereby acknowledges and agrees that Customer shall be jointly and severally liable for the payment of the Fees by the Buyer due and payable to GrainChain for the execution of the Smart-Contract through the Service.
4.2 Payment Terms. Customer authorizes GrainChain, and/or GrainChain’s third party payment service provider, to charge Customer for all applicable Fees due by Customer hereunder using Customer’s selected payment method, and Customer will issue the required payment documentation. Unless otherwise mutually agreed in writing by the parties, Customer shall be automatically charged by GrainChain, through the Services using GrainChain’s third party payment service provider, for the fees due for each Smart-Contract executed through the Service using Customer’s selected payment method. If Customer’s payment is declined or unable to be processed for any reason, such payment shall be deemed past due. Payments made under this Agreement after their due date will incur interest at a rate equal to one and one-half percent (1.5%) per month or the highest rate permitted by applicable law, whichever is lower. In addition, GrainChain reserves the right to immediately suspend or terminate any services provided hereunder and/or Customer’s access to the Services (or any part thereof) in the event the fees due and payable by Customer are more than thirty (30) days late. All payments shall be made in USD. All fees payable under this Agreement are non-refundable.
4.3 Taxes. Customer acknowledges that the fees payable under this Agreement do not include duty, sales, use, shipping, excise, import, export, goods and services, value added or similar taxes or duty, including any penalties and interest thereon, and all government permit and license fees and customs and similar fees, which GrainChain may incur in respect of this Agreement, including any costs expended to collect such amounts from Customer (“Taxes”), and Customer agrees to pay, indemnify and hold GrainChain harmless from all applicable Taxes (other than taxes based upon GrainChain’s net income), unless Customer procures and provides to GrainChain an exemption certificate in a form reasonably acceptable to GrainChain and to the appropriate taxing authority.
4.4 Notice of Fluctuation in Daily Currency Exchange Rate. For international transactions done by GrainChain and its suppliers, Customer may request that foreign currency be exchanged to US dollars or that US dollars be exchanged to foreign currency by using the GrainChain platform. If the Customer’s intended transaction is not finalized, for any reason at all, and the funds have been exchanged to another form of currency, then the Customer will be liable for any profit or losses due to fluctuations in the daily currency exchange rate when funds are returned to Customer.
GrainChain and its suppliers retain all right, title and interest in and to all intellectual property rights in the Platform, Software, and Documentation. In addition, Customer hereby licenses Feedback and Blind Data to GrainChain on a worldwide, perpetual, irrevocable, non-exclusive, freely-transferable, fully paid, and royalty-free basis, for GrainChain to use and exploit in any manner and for any purpose. “Feedback” means any and all suggestions and feedback provided to GrainChain by Customer or Authorized Users regarding the functioning, features, and other characteristics of the Platform, Software, and/or Documentation. “Blind Data” means any and all aggregated non- personally identifiable data or information resulting from Customer’s or Authorized Users’ use of the Platform, Software or services provided by GrainChain.
“Confidential Information” means, with respect to (a) GrainChain, (i) the Software, Documentation, the technology underlying and/or comprised in the Platform, and Feedback, (ii) the fees payable to GrainChain hereunder (if any), and (iii) all materials and information disclosed under this Agreement that are marked “confidential” by GrainChain or that Customer knows or should have known, under the circumstances, are considered confidential by GrainChain; and (b) Customer, (i) Customer Data and (ii) all materials and information disclosed under this Agreement that are marked “confidential” by Customer or that GrainChain knows or should have known, under the circumstances, are considered confidential by Customer. Each party receiving (the “Receiving Party” ) Confidential Information of the other party (the “Disclosing Party”) will: (a) not disclose to any third party or cause to be disclosed any of the Disclosing Party's Confidential Information unless authorized in writing by the Disclosing Party; and (b) refrain from using the Disclosing Party's Confidential Information except to the extent authorized under this Agreement for the generation of invoices, estimates, sales receipts, credit memos, and other sales forms. Confidential Information does not include information that is: (a) publicly available through no fault of the Receiving Party; (b) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party; (c) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (d) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party without violating this Section to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the Receiving Party shall first give the Disclosing Party prompt notice of such order so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors, and with respect to GrainChain, to third party service providers, in each case under a duty of confidentiality except (a) as required by law, (b) pursuant to a mutually agreeable press release, or (c) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality).
7. TERM AND TERMINATION.
7.1 Term. This Agreement will remain in full force and effect as long as Customer continues to access or use the Services (or any part thereof), or until terminated in accordance with the provisions of this Agreement.
7.2 Termination. At any time, GrainChain may (a) suspend or terminate Customer’s and/or any Authorized User’s right to access or use the Services (or any part thereof), or (b) terminate this Agreement with respect to Customer if GrainChain, in good faith, believes that Customer has used the Services (or any part thereof) in violation of this Agreement, including any incorporated guidelines, terms or rules. Without limiting the foregoing, if at GrainChain’s reasonable determination, Customer uses the Services or any other material or services provided by GrainChain to Customer in a manner that violates laws, creates an excessive burden or potential adverse impact on GrainChain’s systems, in addition to any of its other rights or remedies, GrainChain may, without liability to GrainChain, immediately suspend or terminate Customer’s access to the Services.
3 Effects of Termination. Upon expiration or termination of this Agreement, the licenses granted hereunder shall terminate effective immediately and (a) Customer shall promptly discontinue use of the Platform, Software, and Documentation; (b) each party shall promptly discontinue use of each other party’s Confidential Information; (b) each party shall return or destroy, at each party’s option and at other party’s expense, other party’s Confidential Information (including all print copies thereof) in each party’s possession or control; (c) Customer shall destroy all electronic copies of the Software and Documentation, including, without limitation, permanently deleting the Application (and any copies thereof) from Authorized Devices; and (d) at each party’s request, certify that other party has complied with the foregoing requirements. The following Sections will survive any such termination or expiration: 1.2, 1.4, 1.5, 1.6, 2, 3, 4, 5, 6, 7.3 and 8 through 17.
Notwithstanding anything in this Agreement to the contrary, GrainChain will have no responsibility or liability of any kind, arising or resulting from (a) problems caused by failed Internet connections or other hardware, software or equipment which is not owned, controlled or operated by GrainChain; (b) nonconformities resulting from Customer’s, Authorized Users’, or any third party’s, misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Platform, Software, or the services provided by GrainChain hereunder; (c) modification, amendment, revision, or change to the Platform or Software by any person other than GrainChain; or (d) any other factor outside of GrainChain’s reasonable control.
THE SERVICES (AND ANY PART THEREOF), AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY GRAINCHAIN, ARE PROVIDED "AS IS" AND "AS AVAILABLE". GRAINCHAIN AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT. GRAINCHAIN AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT SERVICES (OR ANY PART THEREOF), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY GRAINCHAIN OR CONTENT MADE AVAILABLE THROUGH SERVICES: (I) WILL MEET CUSTOMER’S REQUIREMENTS; (II) WILL BE COMPATIBLE WITH CUSTOMER’S NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY APPLICATIONS; (III) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (IV) WILL BE ACCURATE OR RELIABLE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES, AND ALL RESULTS OF SUCH USE IS SOLELY AT CUSTOMER’S OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM GRAINCHAIN, ANY THIRD PARTY, OR THOUGH SERVICES, SHALL CREATE ANY WARRANTY.
10. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL GRAINCHAIN BE LIABLE FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE DAMAGES OR INDIRECT DAMAGES OF ANY KIND (INCLUDING DAMAGES FOR INTERRUPTION OF BUSINESS, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR THE LIKE) FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GRAINCHAIN’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER TO GRAINCHAIN FOR THE SMART-CONTRACT GIVING RISE TO THE CLAIM OR LIABILITY OR ONE HUNDRED DOLLARS ($100.00). THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT SERVE TO ENLARGE THIS LIMIT. THIS LIMITATION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY SET FORTH HEREIN. GRAINCHAIN DISCLAIMS ALL LIABILITY OF ANY KIND OF GRAINCHAIN’S LICENSORS AND SUPPLIERS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
11. EXPORT CONTROL.
Customer may not use or otherwise export or re-export the Software, Platform and/or Documentation (or any aspect of the foregoing) except as authorized by United States law and the laws of the jurisdiction in which the Software, Platform and/or Documentation was obtained. In particular, but without limitation, the Software, Platform and Documentation may not be exported or re-exported (i) into any U.S. embargoed countries or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, Customer represents and warrants that Customer is not located in any such country or on any such list.
12. AVAILABILITY OF THE SERVICES.
Information describing the Services is accessible worldwide but this does not mean the Services, or certain portions thereof, are available in Customer’s country. GrainChain may restrict access to the Services, or portions thereof, in certain countries in its sole discretion. It is Customer’s responsibility to make sure Customer’s use of the Services is legal in Customer’s country of residence. the Services may not be available or accessible in all languages.
13. ELECTRONIC COMMUNICATIONS.
By using the Services, Customer consents to receiving electronic communications from GrainChain. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to Customer’s use of the Services. These electronic communications are part of Customer’s relationship with GrainChain and Customer receive them as part of Customer’s access and use of the Services. Customer agrees that any notices, agreements, disclosures or other communications that GrainChain sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
14. THIRD PARTY RIGHTS.
14.1 Third Party Rights. Customer acknowledges and agrees that certain distributors (such as app store providers) are intended beneficiaries of this Agreement and have the right to enforce this Agreement directly against Customer. Other than as set out in this Section 14, this Agreement are not intended to grant rights to anyone except Customer and GrainChain, and in no event shall this Agreement create any third party beneficiary rights. Furthermore, the rights to terminate, rescind, or agree to any variation, waiver, or settlement of this Agreement are not subject to the consent of any other person.
14.2 iOS App. The following additional terms and conditions apply with respect to any Application provided or made available to Customer by GrainChain hereunder designed for use on an Apple iOS-powered mobile device (an “iOS App”): Customer acknowledges that this Agreement are between Customer and GrainChain only, and not with Apple, Inc. (“Apple”). Customer’s use of the iOS App must comply with Apple’s then-current App Store Terms of Service. GrainChain, and not Apple, are solely responsible for the iOS App and related content available thereon. Customer acknowledges that Apple has no obligation to provide maintenance and support services with respect to the iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the iOS App. Customer agrees that GrainChain, and not Apple, is responsible for addressing any claims by Customer relating to the iOS App or Customer’s possession and/or use of the iOS App, including, but not limited to: (a) product liability claims; (b) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to GrainChain as provider of the iOS App. Customer agrees that GrainChain, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to the iOS App or Customer’s possession and use of the iOS App. Customer represents and warrants that Customer: (i) is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) is not listed on any U.S. Government list of prohibited or restricted parties. Customer agrees to comply with all applicable third-party terms of agreement when using the iOS App (e.g., Customer must not be in violation of its wireless data service terms of agreement when using the iOS App). The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as it relates to the license granted herein to Customer to use the iOS App. Upon Customer’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Customer as they relate to the license granted herein to Customer to use the iOS App as a third-party beneficiary thereof.
14.3 Android App. The following additional terms and conditions apply with respect to any Application provided or made available to Customer by GrainChain, designed for use on an Android-powered mobile device and/or tablet (an “Android App”): Customer acknowledges that this Agreement is between Customer and GrainChain only, and not with Google, Inc. (“Google”). Customer’s use of the Android App must comply with Google’s then-current Android Market Terms of Service. Google is only a provider of the Android Market where Customer and/or its Authorized Users have obtained the Android App. GrainChain, and not Google, is solely responsible for the Android App and the related content available thereon. Google has no obligation or liability to Customer or any Authorized User with respect to the Android App or this Agreement. Customer acknowledges and agrees that Google is a third-party beneficiary to this Agreement as it relates to the Android App.
15. GOVERNING LAW AND DISPUTE RESOLUTION.
15.1 Governing Law. This Agreement will be governed by the laws of the State of Texas, U.S.A., without giving effect to any conflicts of law principles that may require the application of the law of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement, including, without limitation, application to the Platform, Software or any services provided hereunder. Furthermore, this Agreement will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA.
15.2 Disputes. Except as otherwise set forth in this Agreement, Customer agrees that any dispute between Customer and GrainChain arising out of or relating to this Agreement and/or the Services (or any part thereof) (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
15.3 Informal Resolution. Before resorting to formal dispute resolution in accordance with this Section, Customer agrees to first contact GrainChain directly at [email protected] to seek an informal resolution to any Dispute. In the event a Dispute is not resolved within thirty (30) days after submission, Customer or GrainChain may institute arbitration in accordance with the procedures set forth in this Section.
15.4 Dispute Resolution. Any and all Disputes that cannot be resolved through informal resolution in accordance with Section 15.3 above shall be resolved exclusively through final, binding and confidential arbitration and shall take place in Hidalgo County, Texas unless otherwise mutually agreed to by the parties. The arbitration shall be conducted by the American Arbitration Association (AAA) in accordance with the arbitration rules then prevailing, provided that the arbitrator and the parties shall comply with the following: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator shall be binding, final, and confidential, and may be entered in any court of competent jurisdiction.
15.5 Exception to Arbitration. Notwithstanding anything in this Agreement to the contrary to the extent Customer and/or any Authorized User has in any manner violated or threatened to violate any of GrainChain’s intellectual property rights, GrainChain may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of Texas, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and Customer hereby consents to the personal jurisdiction and exclusive venue in such courts.
16. MODIFICATIONS TO THIS AGREEMENT.
GrainChain reserves the right to update or modify this Agreement at any time. The revised Agreement will be posted on GrainChain’s website located at www.grainchain.io (the “Site”). All updates and modifications to this Agreement will be effective from the day they are posted on the Site (except as otherwise stated in this Section 16). If GrainChain makes any material changes to this Agreement, GrainChain will notify Customer of these changes by sending a notification to the email address GrainChain has on file for Customer, or, if GrainChain does not have an email address on file, by posting a notice of the changes on the Site and through the user interface of the Platform and/or Application. It is Customer’s responsibility to regularly visit and review this Agreement. If Customer does not agree to any updates or modifications to this Agreement, Customer may terminate cease access and use of the Services. Customer’s continued use of the Services after GrainChain has posted the updated Agreement, or, in the event of material changes, ten (10) days following the date GrainChain first notified Customer of such material changes either through email or the date GrainChain posted the notice of such changes on the Site or through the user interface of the Platform and/or Application, signifies Customer’s acknowledgment and agreement to be bound by the revised Agreement.
Neither the rights nor the obligations arising under this Agreement are assignable by Customer, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of this Agreement must be in writing and executed by both parties. The failure of either party to exercise any right provided for by this Agreement shall not be deemed a waiver of that right. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from this Agreement and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in this Agreement. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in this Agreement and its performance shall be construed as creating a joint venture or agency between GrainChain and Customer. GrainChain may delegate the performance of any services hereunder to its affiliates and contractors. This Agreement and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to Customer may be provided by email. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” Customer agrees that this Agreement wi