GrailPay Platform Terms

BEFORE YOU USE THE GRAILPAY SERVICES PLEASE READ THIS AGREEMENT CAREFULLY. THIS CLIENT AGREEMENT (THE "AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND GRAILPAY HOLDINGS, INC. (“GRAILPAY”, “US” “OUR” OR “WE”). BY USING THE SERVICES, YOU, ANY ENTITIES THAT YOU REPRESENT, AND EACH AND EVERY PARTICIPATING SUBSIDIARY OR ASSOCIATED BUSINESS ("YOU" “YOUR” OR "CLIENT") ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT AND ANY RELATED DOCUMENTS AND POLICIES REFERENCED HEREIN THAT APPLY TO THE SPECIFIC GRAILPAY SERVICES RESOLD BY CLIENT.

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This Master Services Agreement (the “Agreement”) is between GrailPay Holdings, Inc., a Delaware corporation (“GrailPay”), and “Customer Name” a [Location of Incorporation + Company Type] (“Client”). The parties hereby agree as follows:

Definitions

Financial Institution Partner means Grasshopper Bank, N.A.

GrailPay Services (or sometimes the “Services”) refers to the services of GrailPay that are resold by Client.  The GrailPay Services resold by Client are specified in Schedule A and Schedule B, or as later amended, and are provided in conjunction with the efforts of various Platforms.  

Client Customer means any entity purchasing one or more of the GrailPay Services.

Client Platform means the application, software, website, or other digital platform operated by Client to conduct its payment processing services.  The Client Platform is distinct from and not a part of any other Platform. 

Vendor(s) means a third party that provides software that Client Customers use to purchase and access one or more GrailPay Services.

Platform(s) means the application, software, website, or other digital platform(s) operated by GrailPay and each respective third party to make the GrailPay Services available to Client Customers.

Platform User means a Client Customer’s payor (whether business or consumer) that uses one or more of the GrailPay Services.

GrailPay Client Account means an account at the Financial Institution Partner for purposes of accessing GrailPay Services.

Transaction means any duly authorized debit or credit entry made by a Client Customer in accordance with the Nacha Operating Rules and Guidelines and any other applicable law.

Account Validation  means the process of either (a) retrieving the specified Platform User account information and presenting such account information to Client for a Client Customer’s use in verifying financial accounts or otherwise authenticating Platform Users, or (b) providing a corresponding error code to Client due to invalid credentials or account and routing numbers from Platform User for a single financial institution account. An Account Verification may be used only one time, only at the specific time requested and solely for the single, specific purpose requested.

Account Validation Request means a single Account Verification attempt to the Platform User’s bank through the applicable GrailPay Service (a) where a Platform User provides valid credentials or (b) where a Platform User provides invalid credentials.

Balance Check means GrailPay’s retrieval of the specified Platform User balance from a single financial institution and presenting an accept/decline recommendation to Client for use or action by Client Customers. However, the accept/decline recommendation makes no guarantees around settlement of transaction.

1. GrailPay Services.

1. This Agreement explains our obligations to You, and Your obligations to Us in relation to the Services provided to You for resale. GrailPay is not a client or seller of goods, but a payment processing and risk analytics platform. Unless later amended in this Agreement, the GrailPay Services consist of: (a) Authorization of transactions from Client Customers to payees via the applicable Platform(s) and the approved Financial Institution Partner; (b) Provision of information to Client to effect settlement of such transactions; and (c) Transaction-related reporting, statements and related documentation, which Client will access under the terms described herein.

2. In order to resell or participate in the GrailPay Services, Client must be a U.S. company or other legally-organized entity, in good standing, with a U.S. physical address. The GrailPay Services may be limited if Your access to the GrailPay Services is suspended or otherwise restricted for failure to comply with this Agreement or any other applicable GrailPay terms or policies provided in writing to You.

2. Term.

The Initial Term of this Agreement will commence on the Effective Date and continue until the conclusion of the Initial Term, which is set for three (3) years from the Effective Date. Thereafter, unless the Agreement terminates earlier in accordance with the terms of this Agreement, the Agreement will automatically renew for additional one (1) year terms (each, a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party delivers to the other party written notice at least sixty (60) days prior to the end of the then-current Term of the party’s intent not to renew the Term. This Agreement may also be terminated by either party at any time upon 30 days prior written notice to the other party if necessary for regulatory reasons. Notwithstanding the foregoing, a party may terminate this Agreement immediately (or such other specified date) upon written notice to the other party in the event the other party commits a material breach of this Agreement that, if capable of cure, is not cured within thirty (30) days of such breaching party’s receipt of a written notice identifying the material breach. Financial Institution Partner may terminate the payment and banking services it may provide in connection with this Agreement in its sole discretion.

3. GrailPay Obligations.

1. Subject to the terms in this Agreement, GrailPay agrees to (i) provide to Client the Services, including without limitation the transmission of transaction information to the Financial Institution Partner or a GrailPay lending partner, and Client shall pay the applicable fees, and (ii) provide Client with access to standardized reports regarding Client Transactions processed using the Services and certain reporting tools to assist Client in accounting activities. Client may access the Services only in accordance with this Agreement, and Client will not provide the reports or tools for use or reliance by any third party unless the third-party use is approved in advance in writing by GrailPay.  GrailPay will have no liability for the use of reports or tools by third parties in violation of this limitation. For purposes of this Agreement, each Vendor shall be approved in advance in writing by GrailPay, unless otherwise specifically denied upon the Client Customer’s attempt to use the Services.

2. GrailPay has implemented and will maintain security systems for the transmission of any of Client's Transactions, consisting of encryption and "firewall" technologies that are understood in the industry to provide adequate security for the transmission of such information over the internet. GrailPay does not guarantee the security of the Services or Transaction data, and GrailPay will not be responsible in the event of any infiltration of its security systems, provided that GrailPay has used commercially reasonable efforts to prevent any such infiltration. Client further acknowledges and agrees that Client, and not GrailPay, is responsible for the security of Transaction data or information or any other information stored on Client's servers, and that GrailPay is not responsible for any other party's servers.

3. GrailPay will use commercially reasonable efforts to undertake maintenance of the Services so as not to cause disruption to the Services. Except where immediate maintenance is required that does not permit any advance notice, GrailPay shall provide reasonable advance notice to Client of any scheduled or other maintenance prior to said maintenance occurring.

4. GrailPay may perform the necessary Know Your business (KYB), Know Your customer (KYC), and Anti-Money Laundering (AML) checks on persons (including You) who desire to utilize the GrailPay Services. GrailPay may apply additional risk assessment measures in relation to what GrailPay reasonably determines is a high-risk client. Client agrees to respond promptly to any reasonable requests for information in order to facilitate GrailPay conducting said measures. Client acknowledges that any delay in the Client’s response may result in delays to the supply of the Service, for which GrailPay will have no liability.

4. Eligible Clients/Creation of Client Account.

1. Only qualified Client Customers and Client Vendors are eligible to create a GrailPay Client Account and use the GrailPay Services.

2. To create a GrailPay Client Account and be eligible to utilize the GrailPay Services, Vendors and Client Customers must and Platform Users may provide GrailPay with the following information: (i) business or trade name, (ii) physical address, email, phone number, (iii) tax identification number, (iv) URL, (v) the nature of business or activities, (vi), and an individual designated as being responsible for the business matters with Us (“GrailPay Account Administrator”) and (vii) certain other information that we may require. We may also collect personal information (including name, birthdate, and government-issued identification number) about beneficial owners, principals, and designated GrailPay Account Administrators.

3. At any time during Vendors and Client Customers use of the GrailPay Services, we may require additional information from Vendors and Client Customers to verify beneficial ownership or control of the business, validate information Vendors and Client Customers provided, verify Vendors’ and Client Customers’ designated GrailPay Account Administrator identity, and assess Vendors’ and Client Customers’ financial condition and the risk associated with Vendors’ and Client Customers’ business. This additional information may include business invoices, copies of government-issued identification, business licenses, or other information related to Your business, its beneficial owners or principals.

4. You authorize Us to retrieve information about Vendors and Client Customers from our service providers and other third parties, including credit reporting agencies and information bureaus and You authorize and direct such third parties to compile and provide such information to Us. You acknowledge that this may include Vendors’ and Client Customers’ name, addresses, credit history, and other data about Vendor and Client Customer or Vendors’ and Client Customers’ GrailPay Account Administrator. You acknowledge that We may use Vendors’ and Client Customers’ information to verify any other information You provide to Us, and that any information We collect may affect our assessment of Vendors’ and Client Customers’ overall risk to Our business.

5. GrailPay may request, and You agree to provide, information about Vendors’ business, operations, funds flows, and/or integration with the GrailPay Services. GrailPay reserves the right to reassess your eligibility for the GrailPay Services at any time. GrailPay may immediately, at its sole discretion, suspend provision of any of the GrailPay Services in the event that GrailPay reasonably determines, based on any of the review processes described in this Agreement, that Vendor has become ineligible for any of the GrailPay Services.

6. You agree to keep the Vendors’ information in your GrailPay Account current. You must promptly update your GrailPay Account with any changes affecting You or your Vendors’, the nature of you or Vendors’ business activities, You or Vendors’ GrailPay Account Administrator, beneficial owners, principals, or any other pertinent information. We may suspend You or Vendors’ GrailPay Account or terminate the Services provided under this Agreement if you fail to keep this information current. You also agree to promptly notify us in writing no more than three (3) days after any of the following occur: (i) You or a Vendor is the subject of any voluntary or involuntary bankruptcy or insolvency application, petition or proceeding, receivership, or similar action (any of the foregoing, a “Bankruptcy Proceeding”); (ii) there is an adverse change in You or a Vendor’s financial condition; (iii) there is a planned or anticipated liquidation or substantial change in the basic nature of You or a Vendor’s business;(iv) there is any change in the control or ownership of you or a Vendor’s business or parent entity; (v) or You or a Vendor receives a judgment, writ or warrant of attachment or execution, lien or levy against 25% or more of Your total assets.

5. Client Obligations.

Client is solely responsible for the following:

1. Establishing, hosting and maintenance of its website(s) and/or software platform and its connection to the internet so that any portion of the Services in which Client participates can be performed,  including without limitation, transmitting data to GrailPay servers and ensuring that any data stored or transmitted by Client in conjunction with or as a part of enrollment in the GrailPay Services is accurate, complete and in the form as requested by GrailPay. Client is also responsible for reviewing the Transactions for each Vendor on a regular basis and notifying GrailPay promptly of suspected unauthorized activity;

2. Establishing and maintaining a commercial banking relationship and Client depository account with one or more financial institutions. The terms of such relationship shall be determined solely by Client and its chosen financial institution;

3. Maintaining commercially reasonable business practices in conjunction with the resale of the Services. Client shall comply with any of GrailPay's requests for reasonable action on Client's part, to the extent necessary, to maintain the security and integrity of the GrailPay Services, and GrailPay shall do likewise with any such requests from Client; Client agrees, and hereby represents and warrants that Client shall (i) resell the Services in accordance with the applicable guides and other documentation provided by GrailPay; and (ii) not use or permit others to use information obtained through any Client Customer’s use of the Services for any purpose other than as described herein or permitted by law;

4. Updating to the most current Software version and security updates and patches necessary to properly operate the GrailPay Services and keep all Client payment information current and up to date.

6. Prohibited Acts.

Each of GrailPay, Client Customer, Client, and Vendors shall be prohibited from: (a) use of the GrailPay Services for any fraudulent, unlawful, deceptive, or abusive purposes; (b) use of the GrailPay Services in any manner intended to harm a Client Customer, the other party, or any third party; (c) circumvention of GrailPay’s intended limitations for any feature of the GrailPay Services as communicated to Client or known by GrailPay; (d) using the GrailPay Services in a manner inconsistent with any developer documentation, integration guidance, this Agreement, or other technical, policy, or additional requirements communicated to Client, posted on GrailPay’s website, or known by GrailPay, as each may be updated from time to time; (e) using the GrailPay Services in violation of any guidance regarding restricted activities communicated to You or known by GrailPay; (e) using the GrailPay Services to conduct transactions for personal, family, or household purposes; (f) engaging in the promotion or sale of any illegal activity or goods, marijuana (THC), illegal online gambling, or (h) attempting or authorizing the attempt of any of the foregoing.

7. Client Customers.

1. The GrailPay Services may only be used for legitimate Transactions with Client Customers and Client Vendors. GrailPay is not responsible for the products or services Client publicizes, makes available, or sells, that are not GrailPay Services or that Client Customers and Client Vendors transact using the GrailPay Services. Client affirms that as between GrailPay and Client, Client is solely responsible for the nature and quality of its products or services provided on the Client Platform, and for delivery, support, refunds, returns, and for any other ancillary services available on the Client Platform, including to Client Customers and Client Vendors.

2. Client shall promptly provide and make available to GrailPay any such additional information relating to any Client Customer as is reasonably requested by GrailPay in order for GrailPay to perform the GrailPay Services set forth herein.

3. Each Client Customer shall agree to the GrailPay Customer Terms of Use which can be found here.

8. Fees, Payments, Taxes, Liabilities, and Reserve Accounts.

1. Client shall pay GrailPay for GrailPay Services pursuant to the fee schedule attached hereto as Schedule A. All fees incurred in a calendar month for the Services in Schedule A will be invoiced to Client on or after the 1^st business day of the following month and shall be remitted to GrailPay within 30 days. You expressly authorize GrailPay to credit the amounts owing to Client under Schedule B to Client’s designated financial institution account(s). You are liable to GrailPay for all fees and expenses (including reasonable attorneys’ fees) that GrailPay incurs in collecting, or attempting to collect, expenses or amounts You owe to GrailPay, and GrailPay is liable to Client for all fees and expenses (including reasonable attorneys’ fees) that Client incurs in collecting, or attempting to collect, expenses or amounts GrailPay owes to Client. GrailPay may modify the fees applicable to the GrailPay Services upon ninety (90) days’ prior written notice to Client.

2. It is Client’s responsibility to determine what, if any, taxes apply to Client’s use of the GrailPay Services, and it is Client’s responsibility to collect, report and remit the required tax to the appropriate tax authority. GrailPay is not responsible for determining whether taxes apply to Client’s use of the GrailPay Services or any transactions that may arise through the use of the GrailPay Services, or for collecting, reporting or remitting any taxes arising from any transaction with or by Client and Client Customer.

3. Client may be asked to provide GrailPay with a valid Tax Identification Number for tax reporting purposes. An IRS Form 1099k may be issued in Client’s name for the value of payments made. Notwithstanding anything else in this Agreement, Client shall be, and will remain, registered for sales, use and other required tax collection purposes in all states and localities in which Client is required to be so registered. Client has the sole responsibility and liability for: (i) determining what, if any, Taxes apply to the sale of Your products and services, or payments You receive in connection with Your use of the Services; and (ii) assessing, collecting, reporting, and remitting taxes for Your business to the appropriate tax and revenue authorities.

4. Client is solely responsible for its and Client Customers’ and Client Vendors’ payment activity initiated using the GrailPay Services, including, without limitation, any fraudulent activity. GrailPay has no obligation to ensure that the funds required to complete a payment will be available. Any payment sent or received by Client or its end users may: (a) be reversed in accordance with GrailPay or its Financial Institution Partners’ risk management policies, (b) be reversed in accordance with Applicable Law, including without limitation, by ACH return as defined under the Nacha Operating Rules, (c) fail due to Client error, Client Vendor error, or Client Customer error, (d) fail due to the provision of inaccurate information by Client, Client Vendor, or Client Customer; or (e) be canceled or rejected by a Client Customer or Client Vendor or their financial institutions (each, a “Reversal”). Except for any Reversal made in error by GrailPay, Client is liable to GrailPay and its Financial Institution Partner for any and all losses caused by Reversals and any other Platform User account activity, whether or not authorized by Client or the Platform User, including unauthorized or erroneous activity initiated by Client or a Platform User, whether through misconduct, negligence, error, or otherwise. Client authorizes GrailPay and its Financial Institution Partner to recover any such amounts due to GrailPay and/or its Financial Institution Partner by debiting the available balance in its account. If the available balance in Client’s account is insufficient, Client authorizes GrailPay and its Financial Institution Partner to take any of the following actions to recover the remaining amounts from Client: (x) debit an alternate account provided by Client; (y) request immediate payment from Client, and, if payment is not received timely, engage in collection efforts; and (z) pursue any rights or remedies available under this Agreement for failure to pay amounts owed to GrailPay, including, without limitation, termination for non-payment. 

9. Customer Service.

Client shall be responsible for Tier 1 customer service issues or inquiries in connection with any products or services sold by Client to Client Customer. If requested by Client, GrailPay shall provide Tier 2 or backup support to Client Customer in relation to Client Customer’s use of the GrailPay Services only.

10. User Data.

1. Client and GrailPay agree that neither party, nor any Financial Institution Partner or GrailPay lending partner has any sole right to ownership of any information that GrailPay and its subcontractors collect from Platform Users or Client regarding such Platform Users (“User Data”).

2. Client understands and agrees that GrailPay may disclose the User Data at its sole discretion, but only as permitted by applicable laws, rules, and regulations.

3. Each Party agrees and understands that it is responsible for the collection, usage, storage, and protection of any User Data it collects and will comply with all applicable data protection and privacy laws. The parties agree to display their privacy policies on their respective website and any mobile application.

11. Trademarks.

Each Party shall obtain the prior consent, which may be granted with email approval, of the other Party in order to use the other Party’s name, logos, trademarks or endorsement in any advertising or solicitation materials and each Party shall also have the right of prior approval of all program advertising and solicitation materials which contain the other Party’s name, trademark or endorsement.

12. Proprietary Rights.

1.  For GrailPay, except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (v) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Services identified herein (collectively "GrailPay Intellectual Property Rights") are owned by GrailPay, and You agree to make no claim of interest in or ownership of any such GrailPay Intellectual Property Rights. You acknowledge that no title to GrailPay Intellectual Property Rights is transferred to you, and that You do not obtain any rights, express or implied, in the GrailPay Services, other than the rights expressly granted in this Agreement. To the extent that You create or in any way contribute to any work that is based upon one or more preexisting versions of the GrailPay Services or other associated work provided to You, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted (each a“ Derivative Work”) shall be owned by GrailPay and all existing and future copyright and other right, title and interest in and to each such Derivative Work, are assigned to, and shall automatically vest in, GrailPay. GrailPay shall have no obligation to grant You any right in any such Derivative Work. Client shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a Derivative Work based upon, distribute, or time share the Services or any components thereof, or otherwise apply any procedure or process to the Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Client shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.

2. For Client,   except as otherwise set forth herein, all right, title and interest in and to all, (i) registered and unregistered trademarks, service marks and logos; (ii) patents, patent applications, and patentable ideas, inventions, and/or improvements; (iii) trade secrets, proprietary information, and know-how; (iv) registered and unregistered copyrights including, without limitation, any forms, images, audiovisual displays, text, software and (v) all other intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of Client’s products and services, including as may be utilized for any of the GrailPay Services (“Client Services”) identified herein (collectively "Client Intellectual Property Rights") are owned by Client, and GrailPay agrees to make no claim of interest in or ownership of any such Client Intellectual Property Rights. GrailPay acknowledges that no title to Client Intellectual Property Rights is transferred to GrailPay, and GrailPay does not obtain any rights, express or implied, in the Client Services, other than the rights expressly granted in this Agreement. To the extent that GrailPay creates or in any way contributes to any work that is based upon one or more preexisting versions of the Client Services or other associated work provided to GrailPay, such as an enhancement or modification, revision, translation, abridgement, condensation, expansion, collection, compilation or any other form in which such preexisting works may be recast, transformed or adapted (each a “ Client Derivative Work”) shall be owned by Client and all existing and future copyright and other right, title and interest in and to each such Client Derivative Work, are assigned to, and shall automatically vest in, Client. Client shall have no obligation to grant GrailPay any right in any such Client Derivative Work. GrailPay shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a Client Derivative Work based upon, distribute, or otherwise share any components thereof, or otherwise apply any procedure or process to the Client Services or components thereof in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings or any algorithm, data, process, procedure or other information contained therein. Client shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Client Services or components thereof.

13. Nature of Relationship.

Client and GrailPay, are independent contractors and businesses whose relationship is governed by this Agreement, and any related documents or policies as referenced herein. Nothing in the parties' agreements, relationship or transactions shall create or be construed as creating an employment, agency, partnership, fiduciary, joint venture, or other form of  relationship between GrailPay and Client (or their respective employees, representatives, or locations) except as independent contractors.

14. Compliance.

Each party represents and warrants that it will only use the GrailPay Services and Client Services for lawful and legitimate purposes and that it will at all times comply and conduct its business in compliance with: (a) all applicable federal, state, and local laws, rules, regulations, and guidance, including, without limitation, those governing payment services, consumer protections, privacy, and data security (collectively, “Applicable Law”); and (b) this Agreement.

15. Fraud and Abuse.

GrailPay reserves the right to review, postpone, or cancel any purchase made via use of the GrailPay Services. If we or the Financial Institution Partner receives a claim or otherwise suspect that a purchase made through use of the Services is fraudulent or otherwise unauthorized, Client shall be immediately notified and we, the Financial Institution Partner, or Client reserve the right to immediately cancel the transaction.

16. Confidentiality.

“Confidential Information” means any type of information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) under this Agreement, regardless of the form of disclosure and which (a) is clearly marked as “confidential” or “proprietary” at the time of such disclosure, or (b) should, by its nature and the circumstances of disclosure, reasonably be understood to be confidential by Receiving Party, regardless of whether such disclosure is marked confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information that is in Receiving Party’s possession at the time of disclosure, as substantiated in writing, was independently developed by the Receiving Party, or enters the public domain without breach of this Agreement.

Subject to the provisions of Section 10.2 above, the Receiving Party must maintain the confidentiality of Disclosing Party’s Confidential Information in a commercially reasonable manner and in a manner no less stringent than the measures it employs to protects its most confidential and proprietary information. Receiving Party must not use Disclosing Party’s Confidential Information for any purpose other than as necessary to perform Receiving Party’s obligations under this Agreement. Receiving Party may disclose Confidential Information that is required to be disclosed pursuant to any statute, regulation, order, subpoena or document discovery request, or in response to an inquiry or request of any governmental or regulatory agency or self-regulatory organization, provided that, to the extent not prohibited, Receiving Party will notify Disclosing Party of such request as soon as practicable in order to afford Disclosing Party an opportunity to seek a protective order. Receiving Party’s obligation to maintain the confidentiality of Confidential Information will survive the termination or expiration of this Agreement for any reason.

17. Limitation of Liability.

EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, IN NO EVENT IS EITHER PARTY OR ITS AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SERVICE PROVIDERS OR SUBCONTRACTORS LIABLE OR OBLIGATED TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST BUSINESS, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. GRAILPAY’S SOLE AND COMPLETE LIABILITY TO CLIENT FOR ANY CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR USE OF THE SERVICES IS LIMITED TO THE AMOUNT OF FEES RECEIVED BY GRAILPAY HEREUNDER FOR THE SIX (6) MONTHS PRECEDING THE DATE THE CLAIM AROSE. THIS LIMITATION OF LIABILITY APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  CLIENT UNDERSTANDS THAT FINANCIAL INSTITUTION PARTNER SHALL NOT BE LIABLE TO CLIENT, AND TO THE EXTENT NOT PROHIBITED BY LAW, CLIENT HEREBY WAIVES, RELEASES AND DISCHARGES ALL RIGHTS OR CLAIMS BY CLIENT AGAINST FINANCIAL INSTITUTION PARTNER IN CONNECTION WITH THE GRAILPAY SERVICES.

18. Indemnity.

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, service providers, subcontractors, and agents (the “Indemnified Party”) from and against any and all claims, liabilities paid to third parties, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) to the extent arising out of any third party claim that the Indemnifying Party’s products or services infringe on any patent, copyright, trade secret, or other intellectual property right of any third party. Client will defend, indemnify, and hold harmless Financial Institution Partner from and against any and all Losses arising out of Client’s use of GrailPay Services.

19. Data Protection.

Each party is responsible for the security of all data in its actual possession or control and for its compliance with Applicable Law in connection with its data handling and management practices. Each party is responsible for maintaining commercially reasonable data security controls to protect and secure data from unauthorized use, access, or disclosure. Each party agrees to provide the other party with any evidence to demonstrate its compliance with this section upon request by the other party. Either party may terminate this Agreement in its sole discretion if it determines that the other party or the other party’s application pose an unacceptable security risk to the terminating party, or its users, provided that, if capable of cure, such other party was first provided with prior written notice of the issue and given not less than a 15 day period to cure it.

20. Intellectual Property.

1. GrailPay grants You and any Vendor a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access, use, and integrate the GrailPay Services with the Client Platform in accordance with this Agreement (“API License”). This API License may be immediately revoked or terminated by GrailPay if you share Your API Credentials with any third party (other than third party service providers who need such information in order to perform services for You) or if You materially breach this Agreement.

2. Including as provided in Section 12, GrailPay is the exclusive owner of and retains all right, title, and interest to the GrailPay Services; including but not limited to GrailPay APIs and all modifications, enhancements, upgrades and updates thereto; and all intellectual property rights therein and thereto (collectively, the “GrailPay IP”). There are no implied licenses under this Agreement. Except as set out in this Agreement, Client will not acquire any rights in the foregoing and Client will not copy, transmit, transfer, modify or create derivative works, reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the GrailPay IP, nor permit or authorize any third party to do any of the foregoing.

3. Including as provided in Section 12, Client is the exclusive owner of and retains all right, title, and interest to the Client Services; including but not limited to Client’s APIs and all modifications, enhancements, upgrades and updates thereto; and all intellectual property rights therein and thereto (collectively, the ”). There are no implied licenses under this Agreement. Except as otherwise set out in this Agreement, GrailPay will not acquire any rights in the foregoing and GrailPay will not copy, transmit, transfer, modify or create derivative works, reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the Client IP, nor permit or authorize any third party to do any of the foregoing.

21. Notices.

All notices to GrailPay must be sent by email to legal@grailpay.com.

22. Entire Agreement.

This Agreement, along with GrailPay Terms, GrailPay Privacy Policy and any applicable terms and policies of GrailPay or of Our Financial Institution Partners, of which Client has been provided, set forth the entire understanding between the Parties with respect to Your re-sale of the GrailPay Services to Client Customers.

23. Assignment.

You may not transfer or assign any rights or obligations You have under this Agreement without GrailPay’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, in the event of a change in control of the business of Client, You may transfer or assign any rights or obligations under this Agreement at any time with 30 day notification to GrailPay. GrailPay and Our Financial Institution Partner reserves the right to transfer or assign any rights or obligations under this Agreement at  any time.

24. Survival.

The following Sections, as well as any terms or Section that by their nature should survive, will survive the termination of this Agreement: 5.5, 8, 17, 18, and 21.

25. No Waiver. 

Any failure of Client, GrailPay or Our Financial Institution Partner to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Any provision of this Agreement held to be invalid or unenforceable under applicable law shall be struck, and the remaining provisions will continue in full force and effect.

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26. Electronic Signatures.

Each party agrees that any electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Each party further agrees that the individual delivering the electronic signature is authorized to do so, and has authority to bind the party for which it is executing the document to the terms and conditions of this Agreement. “Electronic Signature” means any electronic symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.

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27. Governing Law, Jurisdiction and Venue. 

Jurisdiction and venue for the formal resolution of any disputes relating to this Agreement shall lie exclusively in the Federal and State Courts in and for the State of Delaware and any claim requiring formal resolution of any dispute shall be governed by, construed, and interpreted in accordance with Delaware law without giving effect to principles of conflicts of law.

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