Gradable Terms of Service
Effective Date: March 17, 2025
Welcome to Gradable! Thank you for choosing our platform, where we connect agricultural producers with the commercial agricultural industry and facilitate sustainable agricultural practices. These Terms of Service (“Agreement,” or “Terms”) govern your access to and use of our Technology and Services (each as defined below). By accessing or using our Services, you agree to be bound by these Terms, as well as our Privacy Policy and any other policies incorporated by reference. If you do not agree with these Terms, you may not access or use the Services.
For purposes of these Terms, “Gradable,” “we”, “us”, and “our” mean Gradable, LLC, a Delaware limited liability company, along with its subsidiaries and affiliated companies—including, without limitation, Farmer’s Business Network, Inc. and Structured Commodity Solutions LLC. “You” and “your” refer to the individual user, your farm enterprise, and/or your business (if registering for or using the Services as a business), including any employees, agents, or authorized account users.
Our Mission At Gradable, our goal is to provide a seamless experience for managing grain contracts, conducting bid and offer transactions, accessing your grain transaction information, and enrolling in sustainability programs that promote low-carbon and identity-preserved feedstocks.
Please review these Terms carefully, as they include important provisions regarding dispute resolution, limitations of liability, and modifications to the Services. We may update these Terms periodically to reflect changes in our practices or applicable law. Your continued use of our Services after any such changes constitutes your acceptance of the revised Terms.
Important Dispute Resolution Notice ANY DISPUTES BETWEEN YOU AND US ARE SUBJECT TO A CLASS ACTION WAIVER AND MUST BE RESOLVED BY INDIVIDUAL BINDING ARBITRATION. PLEASE READ THE ARBITRATION PROVISION (SECTION 19 BELOW) AS IT AFFECTS YOUR RIGHTS UNDER THIS CONTRACT.
1. Acceptance of Terms
By accessing, registering for, or using any part of our Services in any manner—including, but not limited to, visiting our website, installing or using our mobile application, installing or accessing any white-label applications powered by Gradable, accessing or using any other technology supplied by Gradable (collectively, the “Technology”), accessing or using any information, function, feature, or service made available or enabled by Gradable (collectively, the “Services,” which includes the Technology)—you acknowledge that you have read, understood, and agree to be bound by these Terms, our Privacy Policy, and any additional terms, policies, or guidelines referenced herein or made available to you in connection with specific Services.
By accepting these Terms, you hereby represent and warrant that:
You have read, understand, and agree to be bound by this Agreement and any future amendments or additions to this Agreement as published from time to time at https://app.gradable.com/terms-of-service or through the Technology;
You are at least 18 years of age; and
You have the authority to enter into the Agreement personally and, if applicable, on behalf of any business, farm enterprise, or organization for which you have created an account or been designated as an authorized user.
If you do not have such authority or do not agree to these Terms, you must not access or use the Services.
2. Modifications
We reserve the right to modify or update these Terms at any time, effective upon posting an updated version of this Agreement at https://app.gradable.com/terms-of-service or through the Technology. If we make material changes, we will notify you through the Services, by email, or by other reasonable means. Your continued use of the Services after such changes become effective constitutes your acceptance of the updated Terms. If you do not agree to the changes, you must stop using the Services.
3. Service-Specific Terms and Policies
By using or accessing the Services, you agree to be bound by this Agreement and acknowledge and agree to the collection, use, and disclosure of your personal information in accordance with Gradable’s Privacy Policy, which is incorporated in this Agreement by reference. Certain Services may have their own separate terms and conditions, which are in addition to these terms. You should read any service-specific additional terms and conditions carefully. By accessing or using such Services, you agree to be bound by those additional terms and conditions. In the event of a conflict, those additional terms and conditions will govern your use of those specific services.
4. Description of Services
Gradable provides a technology-enabled platform designed to facilitate grain transactions and support sustainable agricultural practices. Our Services include online tools and mobile applications that enable agricultural producers, grain buyers, and other stakeholders to efficiently manage contracts, bids, sustainability data, and regulatory reporting.
Through the Gradable platform, users can:
Manage Grain Transactions – Producers and grain buyers can create, review, and execute grain contracts, submit and accept bids and offers, and track transactions.
Access Grain Transaction Records – Our platform integrates with grain buyers' systems to provide account information, including scale tickets, delivery information, and grain contracts.
Participate in Sustainability Programs – Producers can enroll in programs that measure and report on carbon intensity, regenerative agriculture practices, and compliance with sustainability certifications.
Analyze & Report Sustainability Metrics – The platform collects and analyzes agronomic data to help producers and grain buyers track sustainability performance and meet compliance or market-driven sustainability goals.
Gradable is not a grain buyer or broker. We do not take ownership of grain, set commodity pricing, or guarantee contract performance between producers and buyers. Our role is solely as a technology provider and facilitator, offering tools and services that enhance agricultural transactions, sustainability initiatives, and compliance management.
5. Account Terms and Access
Account Registration. To access and use the Services, you may be required to create an account. We may need to verify your identity and you authorize us to collect information (e.g., phone number, address) from you to do so (collectively, with all information requested to enable your account, "Account Information"). By registering for an account, you agree to:
Provide accurate, current, and complete information during the registration process.
Maintain and promptly update your Account Information to ensure it remains accurate, current, and complete.
Keep your login credentials secure and confidential, and not share them with any third party.
Accept responsibility for all activities that occur under your account. If you are registering an Account on behalf of a business, farm enterprise, or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms.
Access Rights and Restrictions. By creating an Account, you are granted a limited, revocable, non-exclusive, non-transferable right to access and use the Services in accordance with these Terms. You agree that:
You are solely and fully responsible for all activities that occur under your password or account or through your device.
You will not access or use another user’s account without permission.
You will not assign or otherwise share, sell, transfer, or sublicense your account to another person or entity.
You will not engage in any activity that disrupts, damages, or interferes with the Services.
You will not attempt to circumvent any security features or access controls of the Technology or the Services.
Account Security and Unauthorized Access. You agree you are responsible for maintaining the security of your account and for any activity conducted under your credentials. You must immediately notify us at support@gradable.com if you suspect or become aware of:
Unauthorized access to or use of your Account.
Any security breach related to your login credentials.
Loss, theft, or misuse of your password or authentication methods. Gradable is not responsible, and you may be liable, for any loss, damage liability, expenses, and fees incurred by Gradable or a third party arising from the unauthorized use of your Account.
Suspension or Termination. We reserve the right to suspend or terminate your account, restrict your access to the Services, or remove any content you submit if we determine, in our sole discretion, that you have violated these Terms, engaged in fraudulent or unlawful activity, or compromised the security or integrity of the Services. In addition, at its sole discretion, Gradable may modify or discontinue the Technology or Services, or may modify, suspend, or terminate your access to the Technology or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Technology or the Services, Gradable reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal, or injunctive redress. Even after your right to use the Technology or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement. If your account is suspended or terminated, you may not create a new account without our prior written permission. Any data or content associated with a suspended or terminated account may be deleted or retained in accordance with our data retention policies and applicable laws.
6. User Obligations & Conduct
Without limiting other rules and prohibitions in this Agreement, by using or accessing the Services (whether or not you have created an account or are logged into an account), you agree that your use of the Services aligns with the following obligations and restrictions.
Lawful and Authorized Use. You agree to use the Services only for lawful purposes and in accordance with these Terms. You shall not:
Access or use the Services in any way that violates any applicable federal, state, local, or international law, regulation, or rule, including copyrights, trade secrets, other intellectual property rights, or other rights of any third party.
Access or Use the Services for unlawful purposes, under false pretenses, for sending or storing unlawful material, or for deceptive or fraudulent purposes.
Misrepresent your identity, affiliations, or the nature of your business when using the Services.
Provide false, inaccurate, or misleading information when registering or updating an account or using the Services.
Prohibited Activities. You agree not to directly or indirectly:
Interfere with, disrupt, or attempt to gain unauthorized access to the Services, networks, servers, or systems.
Reverse-engineer, decompile, disassemble, or otherwise attempt to extract source code from the Services.
Use any automated system (including bots, scrapers, or crawlers) to access, collect data from, or interact with the Services without our express written permission.
Use or attempt to use the Services in connection with the development of any software program, including, but not limited to, training a machine learning or artificial intelligence (AI) system or providing archived or cached data sets containing content accessible through the Services to another person or entity.
Copy or distribute, or attempt to copy or distribute, the Technology or any content displayed through the Services, including any market data or third-party grain buyer’s bids, for republication in any format or media.
Attempt to bypass any security measures, access restrictions, or authentication protocols of the Technology or the Services.
Upload, post, or transmit any viruses, malware, or other harmful code that could damage or disrupt the Services.
Use the Services in a manner that could damage, disable, overburden, or impair the proper functioning of the platform.
Use, access, or collect content, data, information, or materials published or available on the Services—including, but not limited to, text, photographs, images, illustrations, charts, designs, audio clips, video clips, “look and feel,” metadata, data, or compilations—using automated means unless Gradable has given you prior permission to do so in writing.
Engage in threatening, harassing, racist, or sexist behavior or any other behavior that Gradable, in its sole discretion, deems inappropriate when using the Services. Gradable may terminate your use of the Technology or Services based on our reasonable suspicion that your activities, business or content are objectionable or promote, support or engage in any of the prohibited uses described above.
7. Third Party Content And Services
Any information or content publicly posted or privately transmitted through the Services, including content shared by third parties such as Gradable Partners (collectively, “Third Party Content”), is the sole responsibility of the person or entity from whom such Third Party Content originated, and you access all such information and content at your own risk. You acknowledge and agree that Gradable is not liable for any errors or omissions in that Third Party Content, any issues with its availability, or any damages or losses you may suffer in connection with such Third Party Content. We cannot control and have no duty to take any action regarding how you may interpret and use any of the Third Party Content or what actions you may take as a result of having been exposed to any Third Party Content, and you hereby release us from all liability for you having acquired or not acquired Third Party Content through the Services.
The Services may contain links or or allow you to connect your account to or otherwise access third party websites, services, or products that are not owned or controlled by Gradable (collectively, “Third Party Services”). Gradable does not warrant, and is not responsible for, such Third Party Services and products or claims made about them, or the actions or inactions of any third party. When you access third party websites or use Third Party Services, you accept that there are risks in doing so, and that we are not responsible for such risks or for mitigating such risks.
Your interactions with Third Party Content or Third Party Services found on or through the Gradable Services are solely between you and the third party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Gradable will not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
If there is a dispute between you and any third party, you agree that other than as provided in the Claims of Copyright Infringement section below, we are under no obligation to become involved. In the event that you have a dispute with one or more third parties, you hereby expressly release Gradable, and all respective officers, directors, employees, agents, predecessors, successors, assigns, licensors, advertisers and/or suppliers (collectively, the “Gradable Parties”) from any and all claims, 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 and/or our Services. If you are a California resident, you shall and hereby do waive the provisions of California Civil Code Section 1542, which states: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
8. App Stores
You acknowledge and agree that the availability of the Technology and the Services is dependent on the third party from which you received the application license, such as the Apple or Android app store (each, an “App Store”). You acknowledge and agree that this Agreement is between you and Gradable and not with the App Store. Gradable, not the App Store, is solely responsible for the Technology and the Services, including the mobile application(s), the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (for example, product liability, legal compliance, or intellectual property infringement). In order to use the Technology and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Technology or the Services. You agree to comply with, and your license to use the Technology and the Services is conditioned upon your compliance with, all applicable third-party terms or agreements (for example, the App Store’s terms and policies) when using the Technology or the Services. You represent and warrant that you are not located in a country that is subject to a United States Government embargo or similar laws of other countries where applicable, or that has been designated by the United States or Canadian Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any United States or Canadian Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
9. Feedback
You may provide Gradable your feedback, suggestions, or ideas for the Technology or Services. You grant Gradable a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty free license to use your feedback, suggestions, and ideas in any way, including in future modifications of the Services, other products or features, advertising or marketing materials.
10. Chatbots
When you use the Technology or Services, you may use or interact with automated features like chatbots, digital assistants, conversational experiences powered by artificial intelligence, or similar technologies (“Chatbots”). Information generated by Chatbots may not be unique.
While Chatbots are designed to improve your experience, these technologies are evolving and may have limitations such as generating outputs that are inaccurate or inappropriate to your situation.
11. Data
Data Storage and Transmission. Your Data (as defined in the Privacy Policy) may be transmitted to/from and stored by us or third party service providers in the United States, Canada, and other countries such as Romania where we conduct engineering software development. As such, Your Data may potentially be accessible to the law enforcement and national security authorities of those jurisdictions.
License. By sharing your Your Data with us, you grant us a royalty-free, worldwide, irrevocable, perpetual license to use, translate, modify, publish, transmit, display, reproduce, commercially exploit, and otherwise act with respect to Your Data, in each case to enable us to operate the Services and for our own business purposes. This is a license only. Your ownership in Your Data is not affected. All of the licenses you grant to us are subject to our Privacy Policy. Please note that the Services allow you to share Your Data with other parties, including third-party grain buyers and sustainability program verifiers. You should make sure your sharing settings are configured to your preferences before sharing Your Data. To the extent you share Your Data with others, you grant them a license to use and exercise all rights in Your Data, as permitted by the functionality of the Services. We are not responsible for how others use Your Data, or the advice or information they provide you when you share Your Data.
Your Ag Data. You represent and warrant that you exclusively own your Ag Data and Grower Content and have the right to share and license it to us and other parties. To the fullest extent permitted, you waive any and all moral rights in your Ag Data and Grower Content, as applicable. We reserve the right to remove any Ag Data or Grower Content for any reason in our sole discretion, including, but not limited to, if someone alleges you contributed the Ag Data or Grower Content in violation of these Terms. You agree to indemnify, defend and hold Gradable harmless against any third party claims that may arise in connection with disputes arising from your ownership of your Ag Data or Grower Content. Certain Services may require you to contribute Ag Data or Grower Content. As a result, we may from time to time ask you to provide certain kinds of Ag Data or Member Content in order to use certain Services. These Ag Data and Member Content contribution requirements are subject to change at any time and in our sole discretion. We have no obligation, nor any responsibility to any party to monitor the Services or its use, and do not and cannot undertake to review material that you or other users submit to the Services. We cannot ensure prompt removal of objectionable material after it has been posted and we have no liability for any action or inaction regarding transmissions, communications, or content provided by you, any user or third party, subject to applicable laws.
12. Communications with Gradable
By creating a Gradable account or using the Technology or Services, you agree to: (a) accept and receive communications from or on behalf of Gradable, partners, and/or third parties providing services to you or Gradable, including via email, text message, direct message, chat, and calls, to the contact information you provide to Gradable when registering an account or using the Technology or Services; and (b) receive communications via push notification or in-app messages in the Gradable mobile application. Further, you understand and agree that you may receive communications (e.g., calls, text messages, etc.) that are generated by an automatic telephone dialing system, and/or which will deliver prerecorded or automated messages, sent by or on behalf of Gradable and partners (e.g., Grain Buyers facilitating the purchase of your grain under sustainability programs), including but not limited to communications concerning offers you place through your account on the Services. Message and data rates may apply and message frequency may vary. The communications in this Section 9 may include, without limitation, commercial or marketing messages, transactional or relationship messages (e.g., messages about the availability of our services (e.g., interruptions in service), security and/or fraud (e.g., password reset messages), safety, responses to communications initiated by you, updates to policies/legal agreements (e.g., privacy policies, terms of service)), reports, newsletters, and messages relating to research, or customer support (those initiated by you and by us). You acknowledge that receiving commercial or marketing messages or calls is not a requirement or condition for you to use the Services. For purposes of clarity, any message (including text message) or call you may receive from us, a partner, or a grain buyer regarding a sustainability program or grain transaction is a transactional message, not a commercial, marketing, or promotional message or call. If there are changes to your contact information (e.g., email address, phone number), you agree to update your account to help prevent or limit Gradable inadvertently communicating with someone else. If you wish to withdraw your consent to receive electronic and telephonic communications or to modify the ways in which we contact you, please contact us at support@gradable.com.
13. Additional Terms
Bids and Offers. The Services may include access to Gradable’s online bid and offer functionality (the “Bid/Offer Platform”) where users can submit and accept offers (“Offers”) to sell grain to third party grain buyers. You acknowledge and agree that transactions are final when a bid or offer is accepted and all agreements are between you and the grain buyer. All transactions are subject to the terms and conditions as agreed between you and the grain buyer. Gradable merely serves to facilitate your communication with third party grain buyers and not as your or their agent or a party to any transaction or contract you enter into with any grain buyer. Gradable has no control over, or liability for, the delivery, quality, prices, payment, legality or any other aspect of any grain transaction between you and a third party grain buyer. Gradable is not responsible for ensuring that any third party grain buyer you transact or contract with will complete the transaction or has the necessary authority to enter into it. If you experience any issues with the goods, services, or payments associated with a transaction, you must resolve those issues directly with the third-party grain buyer. Gradable is not responsible for providing refunds, facilitating delivery, or adjudicating disputes. By using Gradable's Services, you hereby expressly agree Gradable is not liable for any damages arising out of your transaction and/or contract with a third party grain buyer, and under no circumstances may Gradable be made a party to any such claim or action. For the purposes of these Terms, an “Offer” is any proposal made by a buyer or seller (as applicable) on the Bid/Offer Platform designed to induce the other party to enter into a grain transaction, under the specific terms outlined within that Offer.
Sustainability Program Participation and Data Submission. Gradable facilitates sustainability programs (“Sustainability Programs”) on behalf of its partners, including grain buyers, agronomic organizations, and agricultural lenders (collectively, “Gradable Partners”). These programs are designed to support low-carbon and identity-preserved feedstock initiatives, regenerative agriculture practices, carbon intensity measurement, and other environmental or sustainability goals. By enrolling in any such program through our Services, you acknowledge and agree to comply with the specific requirements outlined in this section, as well as any additional terms or policies provided by Gradable or the relevant Gradable Partner. In addition, you agree:
Your decision to participate in any Sustainability Program is entirely voluntary. To enroll, you must complete the enrollment process as directed by Gradable or the Gradable Partner.
Some Sustainability Programs may have eligibility requirements related to geographic location, crop type, farming practices, or existing certifications. It is your responsibility to ensure you meet all applicable criteria before enrolling..
Certain Sustainability Programs may require you to execute a separate agreement or consent form with Gradable or the Gradable Partner. In the event of a conflict between these Terms and any additional agreement, that additional agreement will control with respect to the specific Sustainability Program.
Your participation may require you to submit agronomic data, farm operation details, field boundaries, or other information as specified by the applicable Sustainability Program. As a participant, you agree to provide timely, accurate, and complete information about your farming operations, land use, crop rotations, input usage, management practices, and any other data required under the specific Sustainability Program.
Gradable Partners may update the requirements or criteria of a Sustainability Program. You will be notified of material changes, and continued participation signifies your acceptance of the updated requirements.
You acknowledge and agree that Gradable may share your data (including personally identifiable information, Ag Data, and other relevant metrics) with the Gradable Partner(s) administering the specific Sustainability Program, as well as their authorized representatives, for reporting, certification, compliance, and analytics.
All data submitted is subject to our Privacy Policy and any applicable agreements or privacy statements provided by the Gradable Partner.
Failure to comply with Sustainability Program requirements or submission of inaccurate or fraudulent data may result in suspension or revocation of your participation. Neither Gradable nor the Gradable Partner shall be liable for any losses or damages arising from such suspension or revocation. Gradable’s role is limited to facilitating your enrollment in Sustainability Programs, collecting and transmitting your data to the Gradable Partners, and providing certain analytics or reporting tools. We are not responsible for verifying the accuracy of your submitted data or guaranteeing any particular outcome, certification, or benefit. Enrollment in a Sustainability Program does not guarantee that you will achieve or maintain a specific certification, qualify for incentives, or realize any financial, environmental, or other benefits. You expressly agree to release, indemnify, and hold harmless Gradable and its affiliates from any damages, claims, or disputes arising out of or related to your participation in any Sustainability Program, including but not limited to inaccurate data submissions, non-compliance with program requirements, or the actions or omissions of a Gradable Partner. You may withdraw from a Sustainability Program at any time by providing notice to Gradable or the Gradable Partner, as applicable. However, certain Sustainability Programs may require you to fulfill ongoing obligations (e.g., final reporting). Upon termination or withdrawal, you may lose any program-related status or benefits. Data submitted prior to termination may be retained by Gradable or the Gradable Partner as required by law or for legitimate business purposes, in accordance with Gradable’s Privacy Policy and any applicable data retention policies.
No Financial or Investment Advice. All information and data provided through the Services (including any market data or bid/offer information) is for informational purposes only and does not constitute financial, investment, or trading advice. You are solely responsible for your decisions regarding the purchase or sale of grain, and you should consult your own financial or legal advisors as appropriate.
14. Intellectual Property Ownership
Gradable IP. Gradable alone (and its licensors and affiliates, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Technology and the Services. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Technology or the Services, or any intellectual property rights owned by Gradable. Gradable names, Gradable logos, and the product and services names associated with the Technology and Services are trademarks of Gradable or third parties, and no right or license is granted to use them. You agree that you will not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Technology or the Services.
Partner IP. Our Services may also display certain intellectual property, such as company, product, data and service name and logos, that are owned by our partners (our “Partners’ Intellectual Property”). Nothing in these Terms or our Services grants you, by implication, estoppel, or otherwise, any license or right to copy, modify, sell, reproduce, distribute, republish, display, post, create derivative works from or transmit in any form any of our Partners’ Intellectual Property without their prior consent.
15. Claims of Copyright Infringement
It is Gradable’s policy to terminate account access and use of any user who repeatedly infringes copyright upon prompt notification to Gradable by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information (“Notice”): (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the specific location on the Services of the material that you claim is infringing, including enough information to allow Gradable to locate the material; (d) your address, telephone number, and email address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. This notice of a copyright infringement claim should be sent to Gradable’s Copyright Agent at the address set forth below: Notification must be submitted to the following Designated Agent: Gradable, LLC
Name of Agent Designated to Receive Notification of Claimed Infringement: General Counsel
Full Address of Designated Agent to Which Notification Should be Sent: 3 E 3rd Ave Suite 200, San Mateo, CA 94401
E-Mail Address of Designated Agent: legal@gradable.com
Following receipt of the Notice, we will expeditiously remove or disable the allegedly infringing content. We will also notify the user who submitted or posted the allegedly infringing material and provide them with a copy of the Notice. We may suspend or terminate access to our Services by users that repeatedly infringe the copyrights of others.
16. Indemnification
You agree to indemnify and hold harmless Gradable and our parent, subsidiaries, affiliates, Gradable Partners, officers, directors, agents, employees, and suppliers (each, an “Indemnified Party”) from and against any losses, claims, actions, costs, damages, penalties, fines, and expenses, including without limitation, legal and/or attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to, or resulting from (a) your misuse of the Technology or Services; (b) your breach of this Agreement or any representation, warranty, condition, or covenant in this Agreement; (c) your violation of any applicable laws, rules, or regulations through or related to the use of the Technology or Services; or (d) any aspect of a transaction between you and a third party grain buyer. Gradable reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Gradable in asserting any available defenses.
17. Warranty Disclaimer; Limitation of Liability
Disclaimer of Warranties. Gradable does not make any representations or warranties concerning the Services and/or any Technology contained in or accessed through the Services, and Gradable is not responsible or liable for the accuracy, copyright compliance, legality, or decency of content contained in or accessed through the Services. THE SERVICES AND TECHNOLOGY ARE PROVIDED BY GRADABLE (AND THEIR LICENSORS, ADVERTISERS AND/OR SUPPLIERS) ON AN “AS-IS,” “WHERE IS” and “WHERE AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OR ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT, AND/OR (B) ANY WARRANTIES THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR DOWNTIME OR THAT THEY ARE FREE FROM ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT YOU WILL EXPERIENCE ANY PARTICULAR SUSTAINABILITY OR PERFORMANCE OUTCOME, OR THAT YOU WILL SEE ANY PARTICULAR FINANCIAL, BUSINESS OR AGRONOMIC RESULT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO ONLY PORTIONS OF THE ABOVE LIMITATIONS MAY APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL GRADABLE OR GRADABLE INDEMNIFIED PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST REVENUES OR PROFITS OR UNREALIZED SAVINGS, ANY CROP OR YIELD LOSS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF CONTENT AND/OR AMOUNTS EXPENDED IN RELIANCE ON CONTENT (INCLUDING ANALYTICS), BENCHMARKING OR INFORMATION AVAILABLE THROUGH THE SERVICE, OR COMPUTER FAILURE OR MALFUNCTION, AND/OR (B) ANY DAMAGES IN THE NATURE OF PUNITIVE OR EXEMPLARY DAMAGES, OR (C) SHOULD ANY APPLICABLE LAW NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF DAMAGES, ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) $100.00, OR (II) THE AMOUNTS PAID BY YOU TO GRADABLE IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. PLEASE BE AWARE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO ONLY PORTIONS OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY APPLY TO YOU.
18. Internet Delays
The Technology and Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Except as otherwise required by applicable law, Gradable is not responsible for any delays, delivery failures, damage, loss, injury, or other economic damage resulting from such problems.
19. Dispute Resolution
Injunctive Relief. You acknowledge and agree that money damages would not be a sufficient remedy for any breach or violation of these Terms by you and, accordingly, you agree that Gradable is entitled to immediate injunctive relief from a court of competent jurisdiction as set forth above as a remedy for any actual or threatened breach or violation by you of these Terms without any requirement of proof of damages or the posting of any bond. This remedy is in addition to any and all other remedies available to Gradable at law or in equity.
Agreement to Arbitrate. Without limiting the right to seek injunctive relief in a court of competent jurisdiction, you and we agree to resolve any claims relating to the Terms, the Privacy Policy, the Content, and/or the Services through final and binding arbitration. This applies to claims of all kinds and natures under any legal theory. It also applies even after you have stopped using our Services or your use has been terminated or suspended for any reason. This provision does not apply to any specific contracts between you and us, where we have agreed in writing to resolve contract-related claims through other means in connection with specific transactions between us. An arbitration proceeding is held before a neutral arbitrator rather than a judge and/or jury, so we are all giving up our right to a trial before a judge and/or jury. Arbitration proceedings are governed by different rules than proceedings before a court. Arbitration proceedings are less formal than court proceedings, and provide limited opportunities for a party to require another party to share information relevant to the dispute—a process called discovery. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. But, if any of us does not like the arbitrator’s decision, the courts only have a limited ability to change the outcome of the arbitration or make the arbitrator reconsider his or her decision. If we have a dispute about whether this agreement to arbitrate can be enforced or applies to our dispute, you and we agree that the arbitrator will have the sole authority to decide this issue too. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on any arbitration award may be entered in any court of competent jurisdiction. This clause shall not preclude any party from seeking any provisional remedies in aid of arbitration from a court of competent jurisdiction. Any arbitration will take place in San Francisco, California, for U.S. Users and in Calgary, Alberta for Canadian Users. This arbitration provision shall survive termination of this Agreement and/or the termination of your account.
No Class Actions. YOU AGREE THAT YOU MAY ONLY BRING A CLAIM AGAINST GRADABLE AND/OR ANY OF THE GRADABLE INDEMNIFIED PARTIES ON AN INDIVIDUAL BASIS. That means:
You cannot bring a claim as a plaintiff or class member in a class action, consolidated action or representative action.
The arbitrator cannot combine more than one person’s claim into a single case, and cannot preside over any consolidated, class or representative arbitration proceeding (unless you and we both agree to change this).
The arbitrator’s decision or award in one person’s case can only impact the person who brought the specific claim, and cannot be used to decide other disputes with other Users and/or members. If a court decides that this subsection on “No Class Actions” is not enforceable or valid, then the entire Agreement to Arbitrate and Class Action Waiver will be null and void, but the rest of the Terms and Privacy Policy will still apply.
20. General
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Gradable without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, Gradable, or any third-party provider as a result of this Agreement or use of the Technology or Services.
Choice of Law.
U.S. Users Only: These Terms are governed by and will be construed under the laws of the State of California, without regard to the conflict of laws provisions thereof, except that the Federal Arbitration Act (including its procedural provisions) is the law that will be applied to determine whether the Agreement to Arbitrate and Class Action Waiver below can be enforced and how it should be interpreted. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. You agree, subject to the arbitration provision above, to the exclusive jurisdiction of the California state courts located in San Francisco, California, or the United States District Court, Northern District of California, respectively, including for the issuance of any injunctive relief, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
Canadian Users Only: These Terms are governed by and will be construed under the laws of the Province of Alberta, without regard to the conflict of laws provisions thereof. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. You agree, subject to the arbitration provision below, to the exclusive jurisdiction of the Court of Queen’s Bench or Provincial Courts located in Calgary, Alberta, or the Federal Court located in Calgary, Alberta, as applicable, including for the issuance of any injunctive relief, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.
Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid or unenforceable under applicable law, the invalidity or unenforceability of such provision shall not affect the validity or enforceability of the remaining provisions of this Agreement, which shall remain in full force and effect.
No Waiver. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.
Entire Agreement. This Agreement is the final, complete, and exclusive agreement between the parties regarding the matters set forth or referred to herein, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. Notwithstanding the foregoing, from time to time, you and Gradable may enter into other agreements concerning the sale and/or purchase of other services or products, or for other purposes, which are subject to additional terms and conditions. In the event of any conflict or inconsistency between those terms and conditions and these Terms, those terms and conditions shall take priority as to the specific transactions they are associated with. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of or with Gradable, and you do not have any authority of any kind to bind Gradable in any respect whatsoever.
21. Contact Information
Gradable welcomes your questions or comments regarding this Agreement. Please find our contact information below:
Gradable, LLC 3 E 3rd Ave Suite 200, San Mateo, CA 94401 (605) 307-9914