Introduction

BEFORE YOU USE THE GRAILPAY SERVICES WHICH CONSIST OF PAYMENTS AND FINANCING, PLEASE READ THIS AGREEMENT CAREFULLY. THIS USER AGREEMENT (THE “AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND GRAILPAY HOLDINGS, INC. (“GRAILPAY”, “US”, “OUR” OR “WE”) BY ACCESSING, USING, DOWNLOADING OR INSTALLING THE GRAILPAY SERVICES YOU (“YOU”, “YOUR” OR “USER“) ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT AND ANY RELATED DOCUMENTS, TERMS AND POLICIES REFERENCED HEREIN. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT DO NOT USE THE GRAILPAY SERVICES.

PLEASE READ CAREFULLY ALL OF THE TERMS AND CONDITIONS OF THIS USER AGREEMENT, THE TERMS OF ANY POLICIES REFERRED TO HEREIN AND ANY OTHER AGREEMENT OR TERMS THAT MAY RELATE TO YOUR USE OF THE SERVICES.

Definitions

• Financial Institution Partner means Grasshopper Bank, N.A.
• GrailPay Vendor means any person making goods and services available for purchase by GrailPay Customers via the Partner Platform.
• GrailPay Services refers to the payment processing, data aggregation, financing program, and other services offered by GrailPay.
• Partner Platform means the application, software, website, or other digital platform on which GrailPay Users can access and purchase goods and services from GrailPay Vendors through use of the GrailPay Services.
• GrailPay User means any entity purchasing goods or services offered by a GrailPay Vendor on the Partner Platform.
• Platform User means GrailPay User or GrailPay Vendor or both, as the case may be.
• Linked Account refers to a GrailPay User’s account with a bank or credit union.
• Transaction means any duly authorized debit or credit entry made by a Platform User in accordance with the Nacha Operating Rules and Guidelines and any other applicable law.

1.GrailPay Services.

1.1 This Agreement provides a general description of the GrailPay Services that allow You to make payments to Vendors for goods or services. This Agreement may be revised or supplemented at any time, with notification sent by Us to You by text or email informing You of revisions to this Agreement on grailpay.com or any other website We maintain for purposes of providing the GrailPay Services. Changes to the Agreement are effective at the time we post them and continued use of the GrailPay Services constitutes acceptance of any changes or revisions to the Agreement.

1.2 GrailPay offers the GrailPay Services to GrailPay Users, and this Agreement explains our obligations to You, and Your obligations to Us in relation to the GrailPay Services. GrailPay Services consist of: (a) Authorization of pay by bank transactions from Client Customers to Client Vendors via the Client Platform and the approved Financial Institution Partner; (b) Provision of information to Client to effect settlement of such transactions; (c) Authorization of short-term financing products; and (d) Transaction-related reporting, statements and related documentation, which Client will access under the terms described herein.

1.3 The GrailPay Services send Your payment instructions to GrailPay’s Financial Institution Partner. Our Financial Institution Partner provides ACH services through which the GrailPay User transmits payment to the GrailPay Vendor for its goods or services.

1.4 Except as specifically set forth herein, the Financial Institution Partner is not responsible for the GrailPay Services or fulfillment of GrailPay’s obligations under this Agreement.

1.5 GrailPay is not a merchant or seller of goods or services. GrailPay does not endorse, guarantee, or sponsor any of the GrailPay Vendors. We are not responsible for the provision of, or failure to provide any services or goods by any GrailPay Vendor or any other act or omission of any GrailPay Vendor. GrailPay has no way of knowing if any particular purchase, order, or other transaction is accurate or complete. Your relationship with a GrailPay Vendor is governed by the terms of the purchase from the GrailPay Vendor for the GrailPay Vendor goods or services.

2.Platform Users

2.1 In order to use the GrailPay Services, You must be (a) a resident of the United States (b) at least 18 years old, and (c) have and maintain at least one bank account or credit union account at a state or federally-chartered financial institution in the United States (Your “Linked Account”).

2.2 To be a GrailPay User or GrailPay Vendor and be eligible to utilize the GrailPay Services, you may be required to provide GrailPay with the following information: (i) Your business or trade name, (ii) physical address, email, phone number, (iii) tax identification number, (iv) URL, (v) the nature of Your business or activities, (vi), and individual You designate as being responsible for the business matters between You and Us (“GrailPay Account Administrator”) and (vii) certain other information about You that we may require. We may also collect personal information (including name, birthdate, and government-issued identification number) about Your beneficial owners, principals, and Your designated GrailPay Account Administrator. The collection and use of the information You provide is subject to Our Privacy Policy, found here: https://grailpay.com/privacy-policy.

2.3 When You use the GrailPay Services to transmit payment instructions, You authorize GrailPay to send such instructions to Our Financial Institution Partner, who you authorize to credit or debit Your Linked Account in accordance with Your instructions. You are solely responsible for complying with any terms set by Your bank or credit union with respect to Your Linked Account, including any fees (e.g., nonsufficient fund or overdraft fees).

2.4 You are solely responsible for keeping confidential Your login information and password on the Partner Platform and to your Linked Account that you use to access the GrailPay Services. You are responsible for all activity conducted through Your Linked Account and Your use of the GrailPay Services.

2.5 You agree that You will only use the GrailPay Services for lawful and legitimate purposes, and You will at all times comply with all applicable federal, state, and local laws, rules, regulations, guidance, GrailPay terms and policies.

2.6 You agree that You will provide GrailPay sufficient information to satisfy the requirements of the Nacha Operating Rules to create instructions to make or receive a payment in the ACH network (May include but not limited to your name, banking information, email and phone number). GrailPay has established cutoff times for receipt of payment instructions, and you understand that GrailPay cannot and does not guarantee any specific time in which ACH transactions initiated through Your use of the GrailPay Services will be completed. For questions regarding any specific transaction or its anticipated timing, please contact support@grailpay.com.

2.7 You agree to keep the information provided to GrailPay current. You must promptly update GrailPay with any changes that may impact GrailPay’s ability to communicate effectively with You or provide You with GrailPay Services.

2.8 You agree to bound by the ACH Origination Agreement set forth by GrailPay, which can be found here: https://grailpay.com/ach-authorization.

3.Prohibited Activities.

You shall not use the GrailPay Services to engage in illegal or fraudulent activities. GrailPay and its Financial Institution Partner reserve the right to suspend your access to the GrailPay Services or terminate this Agreement in the event that you are using the GrailPay Services to conduct any activity we determine to be high risk or to expose us or other GrailPay clients or customers to an unacceptable level of risk. If we learn or suspect that You are using the GrailPay Services for any illegal or fraudulent purpose, we may share Your information with any government or regulatory authority, financial institution, or law enforcement agency we deem necessary to fulfill our obligations to comply with applicable laws.

4.Termination.

This Agreement will continue in effect until terminated by either party in accordance with this Section (the “Term”). GrailPay may terminate this Agreement, at any time for any reason, with no liability, upon written notice to User, and the User’s ability to access the GrailPay Services shall cease.

User may terminate this Agreement by notifying GrailPay at support@grailpay.com. Once You have terminated the Agreement You will no longer have access to the GrailPay Services.

5.Unauthorized Transactions.

5.1 If You believe that (i) the GrailPay Services have been used without Your authorization; (ii) a transaction has occurred that You did not authorize; (iii) a transaction has been processed incorrectly to or from Your Linked Account; or (iv) Your transaction history made available to You by the Partner Platform contains an error (each, an “Error”), please first contact the Partner Platform and if you are unable to resolve such error, contact Us at support@grailpay.com. You must notify us according to the terms set forth in the ACH Origination Agreement after an Error first appeared in Your transaction history. For the purposes of clarity, providing a third-party access to GrailPay Services under your name or Linked Account, resulting in transactions You did not anticipate, does not constitute an Error.

5.2 In order for GrailPay to effectively address an Error, You must provide GrailPay with (i) Your name, the name of the Partner Platform, and the name of the GrailPay Vendor who provides You with access to Your GrailPay Account, (ii) the nature of the suspected Error (iii) the basis the transaction is believed to be an Error, and (iv) the dollar amount of the Error.

5.3 After a report of an Error and providing all necessary and relevant information related thereto, GrailPay will determine whether an Error occurred. If we determine there was no Error, we will provide You a written explanation.

5.4 GrailPay reserves the right to review, postpone, or cancel any Transaction made via the GrailPay Services. If we receive a claim or otherwise suspect that a purchase made through use of the GrailPay Services is fraudulent, we reserve the right to immediately cancel the transaction, collect funds, and recover any costs associated with the fraud.

6.Reversed; Failed Transactions

6.1 You are responsible for and will be assessed all reversed or failed transactions, fees, claims, fines, penalties, and other liabilities incurred by GrailPay, Our Financial Institution Partner, or other GrailPay customers arising from Your use of the GrailPay Services, including, but not limited to, any breach of this Agreement or any other applicable policy or terms. Without limiting the foregoing, You agree to reimburse GrailPay or Our Financial Institution Partner for any liability relating to a transaction that: (i) is reversed in accordance with GrailPay or its Financial Institution Partners’ risk management policies; (ii) is reversed in accordance with applicable laws, including without limitation, by ACH return (as that term is defined under the Nacha Rules), (iii) fails due to Your error; (iv) fails due to the provision of inaccurate information; or (v) is cancelled or rejected by You or the recipient or sender, or Your or their bank or credit union (each, a “Reversal”).

6.2 In order to recover any monetary loss due to a Reversal, you authorize GrailPay to debit Your Linked Account for such amount. Additionally, at GrailPay’s option, GrailPay may suspend Your ability to access GrailPay Services, and GrailPay may engage in collection activities. For all other liabilities or if GrailPay determines, in Our sole discretion, that You have breached this Agreement or that Your use of the GrailPay Services presents a risk or other threat to GrailPay, GrailPay’s clients, or the GrailPay Platform, or if we are unable to verify Your identity, we may take any of the following actions (without limiting or foregoing any other remedies available to us under the law or this Agreement):

a.Suspending Your access to the GrailPay Services;

b.Contacting any GrailPay Merchants with whom You have interacted, Your bank or credit union, law enforcement, or other third parties impacted by Your activities to notify them of the concerning activity; and;

c.Take legal action against You as may be appropriate.

7.Electronic Communications.

7.1 By using the GrailPay Services, You consent to receive all communications, including but not limited to updates to terms, disclosures, notices, statements, and related communications (collectively “Communications”) from GrailPay electronically. You confirm that You can access, receive and retain such Communications. GrailPay will provide certain Communications by posting them on grailpay.com and others will be sent via email or text to You at the email address or mobile number You provided when initiating use of the GrailPay Services.

7.2 A Communication to You will be deemed to have been received by You twenty-four hours after We have emailed, texted, or posted it to Our website.

7.3 You may withdraw Your consent to receive Communications electronically by contacting us at support@grailpay.com. Because the nature of the GrailPay Services requires delivery of Communications electronically, Your access to GrailPay Services may cease upon receipt of notice of Your intent to withdraw such consent.

8.GrailPay Proprietary Rights.

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 or its licensors, 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 or its licensors’ service, other than the rights expressly granted in this Agreement. To the extent that You create or in any way contribute to any Derivative Work (any work that is based upon one or more preexisting versions of a 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) such 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. Except to the extent permitted by applicable law, You shall not disassemble, decompile, decrypt, extract, reverse engineer, prepare a Derivative Work, 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. User shall not rent, sell, resell, lease, sublicense, loan or otherwise transfer the Services or components thereof.

9.Compliance.

User represents and warrants that it will only use the GrailPay Services for lawful and legitimate purposes. You agree that Your use of the GrailPay Services will at all times comply 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”); (b) this Agreement; and (c) the GrailPay Terms.

10.Limitation of Liability.

IN NO EVENT SHALL GRAILPAY, OUR FINANCIAL INSTITUTION PARTNER, AND EACH RESPECTIVE AFFILIATE, EMPLOYEE, OFFICER, DIRECTOR, AGENT, SERVICE PROVIDER OR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (A) THIS AGREEMENT; (B) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE GRAILPAY SERVICES, OR (C) ANY GOODS OR SERVICES PURCHASED, RECEIVED, OR PAID FOR USING THE GRAILPAY SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF GRAILPAY AND FINANCIAL PARTNER HAVE BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. IN NO EVENT SHALL GRAILPAY OR OUR FINANCIAL INSTITUTION PARTNER’S LIABILITY AND THE LIABILITY OF OUR AND ITS RESPECTIVE AFFILIATE, EMPLOYEE, OFFICER, DIRECTOR, AGENT, SERVICE PROVIDER OR SUPPLIER EXCEED THE FEES GRAILPAY HAS RECEIVED FROM YOU THROUGH YOUR USE OF THE GRAILPAY SERVICES. GRAILPAY AND OUR FINANCIAL INSTITUTION PARTNER SHALL NOT BE JOINTLY LIABLE FOR ANY MATTERS HEREUNDER. THIS LIMITATION OF LIABILITY SECTION SHALL APPLY TO FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

11.Indemnity.

You agree to defend, indemnify and hold harmless GrailPay, Our Financial Institution Partner, and Our and their respective affiliates, employees, officers, directors, agents, employees, and suppliers from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys’ fees and other litigation expenses) arising from: (a) Your violation of this Agreement, or any other applicable GrailPay terms or policies or those of Our Financial Institution Partners; (b) Your use of the GrailPay Services; (c) Your negligence or willful misconduct; and/or (d) Your actual or alleged violation of any third party rights, or any applicable laws, regulations or rules.

12.No Warranty.

THE GRAILPAY SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT ANY REPRESENTATION OF WARRANTY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. USE OF THE GRAILPAY SERVICES IS AT YOUR OWN RISK. GRAILPAY, OUR FINANCIAL INSTITUTION PARTNER, AND OUR AND THEIR RESPECTIVE AFFILIATE, EMPLOYEE, OFFICER, DIRECTOR, AGENT, SERVICE PROVIDER OR SUPPLIERS, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER GRAILPAY NOR OUR FINANCIAL INSTITUTION PARTNER HAS CONTROL OF, OR LIABILITY FOR, ANY ACTS OR OMISSIONS OF OR SERVICES OR GOODS OFFERED BY MERCHANTS. NEITHER GRAILPAY NOR OUR FINANCIAL INSTITUTION PARTNER REPRESENTS OR WARRANTS THAT THE GRAILPAY SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, SECURE, TIMELY, OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GRAILPAY WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. NEITHER GRAILPAY NOR OUR FINANCIAL INSTITUTION PARTNER SHALL BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS OR SYSTEM FAILURES THAT MAY AFFECT THE PROCESSING, COMPLETION, OR SETTLEMENT OF TRANSACTIONS. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

13.Governing Law.

You agree that the laws of the State of New York without regard to principles of conflict of laws, govern this Agreement and any claim or dispute that has arisen or may arise between the Parties.

14.Class Waiver, Waiver of Trial by Jury.

To the fullest extent permitted by law, the You and GrailPay agree that no class actions or similar process, and no joinder or consolidation of any Claim with a Claim of any other person or entity, shall be allowed. In arbitration, the arbitrator shall have no authority to entertain any Claim on behalf of a class, group, person, or entity who is not a named party to the arbitration, nor shall any arbitrator have authority to make any award for the benefit of, or against, any class, group, person, or entity who is not a named party to the arbitration. In the event that there is a dispute about whether limiting arbitration to non-class proceedings, or to the named parties, is enforceable under applicable law, then that question shall be resolved by a court in New York City, New York, rather than by an arbitrator; and to the extent it is determined that resolution of a Claim must proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration. In the event that any dispute proceeds in court, each party irrevocably waives any right to trial by jury in any proceeding with regard to any Claim.

15.Notices.

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

16.Entire Agreement.

This Agreement, along with GrailPay Terms, GrailPay Privacy Policy and any applicable terms and policies of GrailPay or Our Financial Institution Partners, set forth the entire understanding between the Parties with respect to Your use of the GrailPay Services.

17.Assignment.

You may not transfer or assign any rights or obligations You have under this Agreement. GrailPay and Our Financial Institution Partner reserves the right to transfer or assign any rights or obligations under this Agreement at any time.

18.Survival.

The following Sections, as well as any terms by their nature should survive, will survive the termination of this Agreement.

19.No Waiver.

Any failure of 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.