GrainBuys.com Terms & Conditions
Last updated May 2018
About These Terms and Conditions
These Terms and Conditions (the "Terms") govern your use of our website located at www.grainbuys.com (the "Site") and the online platform services provided by Grainbuys.com (collectively, "Grainbuys.com") via our Site. To make these Terms easier to read, the Site and our services available via the Site are collectively called "Services." Our online platform connects people who have feed commodities for sale ("Seller(s)") with people who are interested in purchasing feed commodities ("Buyer(s)"). Buyers, Sellers and other users of the Services are collectively called "Users" in these Terms.
Agreement to Terms
By using the Services, you agree to be bound by these Terms. If you don't agree to these Terms, please do not use the Services. Also, if you are accessing and using the Services on behalf of a Buyer, Seller or other person, or an entity or company (such as your employer, a corporation or a trust), or acting as the agent of any of the foregoing, you represent and warrant that you have the full legal authority and capacity to bind that Buyer, Seller, or other person, or entity or company to all of these Terms. In that case, "you" and "your" will refer to that Buyer, Seller, person, agent, or company or other entity.
Changes to Terms or Services
We may modify the Terms at any time, in our sole and absolute discretion. If we do so, we'll let you know either by posting the modified Terms on the Site or App or through other communications. It's important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site or otherwise communicated them to you, you are indicating to us by your continued use that you agree to be bound by the modified Terms. If you don't agree to be bound by the modified Terms, then you are not permitted to use any of the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole and absolute discretion.
ARBITRATION NOTICE: EXCEPT IF YOU OPT OUT AS DESCRIBED IN THE ARBITRATION SECTION SET FORTH IN THE ARBITRATION SECTION LATER IN THIS AGREEMENT, AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SUCH "DISPUTE RESOLUTION" SECTION, YOU AGREE THAT DISPUTES BETWEEN YOU AND GRAINBUYS.COM WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
What We Do and Don't Do via the Services
Grainbuys.com offers a technology service and platform via the Services through which Sellers and Buyers of feed commodities can connect. Sellers can sign up with the Services and advertise feed commodities that are for sale by posting "Seller Offers." Buyers can browse the Seller Offers and contact the Seller via the Services if they are interested in buying a feed commodity included in a Seller Offer. Prospective Buyers can sign up with the Services and advertise their desire to purchase feed commodities by posting “Buyer Requests.” Sellers can browse the Buyer Requests and contact the Buyer via the Services if they are interested in selling a feed commodity included in Buyer Request.
Grainbuys.com does not carry inventory or ship products. All contracts for the sale and purchase of feed commodities are between the Buyer and Seller.
Who May Use the Services
You may use the Services only if you are 18 years or older and capable of forming a binding contract with Grainbuys.com or a Seller and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you'll have to create an account ("Account"). You can do this via the Site.
It's important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don't, Grainbuys.com may suspend or terminate your Account. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about, or consent to, them.
We welcome feedback, comments, questions, suggestions, improvements, concerns and the like regarding the Services (collectively, "Feedback"). You may deliver Feedback to us by email, including through firstname.lastname@example.org, phone calls, interviews, texts, chat, surveys, or other communication tools or systems currently used or used in the future. You agree that you exclusively own any Feedback and grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sub licensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
The terms in this Section apply to you if you are a Seller. If you're a Buyer, please see the Section entitled "Buyer Terms" below.
We welcome you if you are a Seller, as long as you are posting a Seller Offer that isn't illegal or unauthorized. However, we do not endorse any Sellers and your posting a Seller Offer does not mean you or your Seller Offer is endorsed in any way by us. We do not routinely conduct background checks on Sellers, but we reserve the right to do so on a discretionary basis, and you agree to cooperate with us and provide us with all information and execute any forms necessary that we request from you in the event that we decide to conduct a background check on you. We're not responsible for any damage or harm resulting from your communications or interactions with Buyers or other Sellers, either via the Services or otherwise. Sellers are not employees, agents or otherwise contractors of Grainbuys.com, but are independent people who want to post Seller Offers and connect with Buyers.
You agree that any legal remedy or liability that you seek to obtain for actions or omissions of Buyer or other third parties regarding Seller Offers or any Purchase and Sale Agreement (defined below) you enter into with a Buyer for purchase of a feed commodity will be limited to a claim against the particular Buyer or other third parties, who caused you harm and you agree not to attempt to make a claim for damages or liability against Grainbuys.com, or seek any legal remedy from Grainbuys.com with respect to such actions or omissions. That said, you may also contact us and we will take any actions that we deem appropriate and necessary.
Your Obligations as a Seller
"Seller Offer(s)" means a description of a feed commodity that the Seller lists for sale using the Services. When you create a Seller Offer, you will need to submit information to us about the feed commodity, including without limitation, type, quantity, price, shipment timeframe, and other terms. You hereby grant a license to Grainbuys.com to use such listing information in order to operate the Services - please see the Section below entitled "Rights in Content Granted by You". It is important that such information be complete and accurate, and we do not verify any such information or User Content you provide to us via the Services for your Seller Offers. A Seller Offer can also include requirements with which potential Buyers must comply in order to purchase the feed commodity for sale in Seller Offer. You agree that you are responsible for all Seller Offers you post and for keeping the Seller Offer information current and up to date, including up to the date of sale of a feed commodity included in a Seller Offer. We reserve the right to reject a Seller Offer for any reason in our sole and absolute discretion. We will notify you if we reject your Seller Offer and we may give you an opportunity to amend your Seller Offer into a form that we would publish.
Contract with Buyers
If a Buyer wants to buy a feed commodity included in your Seller Offer, any contracts and/or Purchase and Sale Agreements that you enter into with the Buyer, written or oral, will be Grainbuys.com between you and the Buyer only. You acknowledge and agree that you, and not Grainbuys.com, will be responsible for performing the obligations of any contracts with the Buyer, and Grainbuys.com is not a party to such contracts or Purchase and Sale Agreements and disclaims all liability arising from or related to such contracts. You represent and warrant that you will act in compliance with all applicable laws in connection with Seller Offers you post using the Services and any sale of feed commodities to Buyers.
Financial Terms between Grainbuys.com and Sellers
As a condition of accessing the site, Sellers agree to pay 3% of the transaction value. If the sale delivery period is greater than one month, this fee will be divided by the number of months in the delivery period, and that amount will be charged to the Seller monthly for the term of the contract. The first payment is due upon finalizing a contract with a buyer on Grainbuys.com. The following monthy payments will be automatically charged to the Seller’s credit card monthly on that same date for the remainder of the contract delivery period. All fees paid to Grainbuys.com shall be considered nonrefundable.
You acknowledge that Grainbuys.com’s ability to retain its customers is a fundamental part of the bargain between you and Grainbuys.com. To that end, you agree that, for a period of one (1) year after using the Services to conduct a feed commodity transaction with a Buyer, you will not transact any feed commodity business with that Buyer outside of Grainbuys.com, regardless of Buyer’s assent to such a transaction.
The terms in this Section apply to you if you are a Buyer. If you're a Seller, please see the Section "Seller Terms" above.
No Endorsement and Buyer Diligence Review
We do not endorse any Seller or Seller's Offers. We don't have an obligation to conduct background checks on any Seller, but we might do so on a discretionary basis. Grainbuys.com is not responsible for any damage or harm resulting from your communication or interaction with Sellers or other Buyers. Grainbuys.com makes no representation that the information provided in a Seller’s Offer is accurate or complete. With respect to a feed commodity which the Buyer desires to purchase Buyer represents that Buyer has reviewed and understands all information available on the Site as to such feed commodity.
You agree that any legal remedy or liability that you seek to obtain for actions or omissions of Seller or other third parties regarding Seller Offers or any Purchase and Sale Agreement you enter into with a Seller for purchase of a feed commodity, will be limited to a claim against the particular Seller or other third parties who directly caused you harm and you agree not to attempt to make a claim for damages or liability against Grainbuys.com, or seek any legal remedy from Grainbuys.com with respect to such actions or omissions. For additional terms regarding liability, please also refer to the paragraphs hereinbelow entitled "Indemnity" and "Limitation of Liability".
We also encourage you to communicate directly with the Sellers regarding Seller Offers they have posted for their feed commodities via the instant chat/messaging feature included with the Services. You may also contact us and we will take any actions that we deem appropriate.
Your Obligations as a Buyer
Contract with Sellers
You acknowledge and agree that you, and not Grainbuys.com, will be responsible for performing the obligations of any contracts with the Seller, and that Grainbuys.com is not a party to such contracts or Purchase and Sale Agreements and disclaims all liability arising from or related to such contracts.
You acknowledge that Grainbuys.com’s ability to retain its customers is a fundamental part of the bargain between you and Grainbuys.com. To that end, you agree that, for a period of one (1) year after using the Services to conduct a feed commodity transaction with a Seller, you will not transact any feed commodity business with that Seller outside of Grainbuys.com, regardless of Seller’s assent to such a transaction.
Content and Content Rights
For purposes of these Terms: (i) "Content" means data, text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or materials that are posted, generated, provided or otherwise made available through the Services; and (ii) "User Content" means any Content that Users (including you) provide to be made available through the Services, including Seller Offers posted by Sellers and information provided to the Community. Content includes without limitation User Content.
Grainbuys.com does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Grainbuys.com and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
You hereby grant to Grainbuys.com a non-exclusive, transferable, sublicenseable, worldwide, perpetual, royalty-free license to use, copy, modify (for formatting purposes only), publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services to you or to other Users.
You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Grainbuys.com on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You can remove your User Content, including a Seller Offer, by specifically deleting it, via the functionality of the Services. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Grainbuys.com Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. Moreover, we may continue to use any User Content as set forth above.
Rights in Content Granted by Grainbuys.com
Subject to your compliance with these Terms, Grainbuys.com hereby grants you a non-commercial, limited, non-exclusive, non-transferable, non-sublicensable license to access, view and print the Content solely in connection with a Permitted Use of the Services. A "Permitted Use" means any use of Content in connection with the Grainbuys.com Services, excluding prohibited activity under the General Prohibitions provisions below or use of analytics data, made available to you via the Services, for commercial purposes, independent of the Services.
You expressly consent to be contacted by Grainbuys.com, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send one via text.
You consent to receive SMS messages (including text messages), calls and messages (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, or numbers we can reasonably associate with your account (through skip trace, caller ID capture or other means), with information or questions about your user activity and/or account. You certify, warrant and represent that the telephone numbers that you have provided to us are your numbers and not someone else's. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to alert us whenever you stop using a particular telephone number.
Call Recording and Monitoring
You consent to the recording and monitoring, for quality assurance, training, risk management and/or collection purposes, of any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.
You agree not to do any of the following:
- Post, upload, publish, submit, or transmit any User Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services or any individual element within the Services, Grainbuys.com's name, any Grainbuys.com trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Grainbuys.com's express written consent;
- Access, tamper with, or use non-public areas of the Services, Grainbuys.com's computer systems, or the technical delivery systems of Grainbuys.com's providers;
- Attempt to probe, scan, or test the vulnerability of any Grainbuys.com system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Grainbuys.com or any of Grainbuys.com's providers or any other third party including another user to protect the Services or Content;
- Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism including spiders, robots, crawlers, data mining tools or the like other than the software and/or search agents provided by Grainbuys.com or other generally available third-party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Grainbuys.com trademark, logo URL or product name without Grainbuys.com's express written consent;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
- Copy, modify or create derivative works based on the Content and Services, other than your own User Content;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail- bombing the Services;
- Collect or store any personally identifiable information from the Services from other Users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation;
- Publish or distribute any Content or Third Party Content without the prior written consent of Grainbuys.com, or
- Encourage or enable any other individual to do any of the foregoing.
Although we're not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services to ensure compliance with these Terms; and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, including User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Grainbuys.com respects copyright law and expects its Users to do the same. It is Grainbuys.com's policy to terminate access in appropriate circumstances to Users who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. It is Grainbuys.com's policy to handle copyright infringement claims by Users and third parties in accordance with the Digital Millennium Copyright Act ("DMCA").
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources, including Third-Party Content as described above. We provide these links as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services for any reason or no reason, in our sole discretion, at any time and without prior notice to you. You may also cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation, or cancellation of Services or your Account, the following provisions will survive, Contract with Buyers, Contract with Sellers, Warranty Disclaimers, Indemnity, Limitations of Liability, and Dispute Resolution Provisions, and any other provisions which by their sense and context are intended to survive.
BUYER ACKNOWLEDGES THAT, WITH RESPECT TO ANY FEED COMMODITY DESCRIBED IN ANY SELLER’S OFFER, NO EXPRESS WARRANTIES OF ANY KIND ARE MADE BY GRAINBUYS.COM.
ADDITIONALLY, TO THE FULLEST EXTENT ALLOWABLE BY APPLICABLE LAW, GRAINBUYS.COM EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, WITH RESPECT TO ANY FEED COMMODITY DESCRIBED IN ANY SELLER’S LISTING. ALL FEED COMMODITIES ARE OFFERED ON AN “AS-IS,” “WITH ALL FAULTS” BASIS. ACCORDINGLY, BUYER SHOULD RELY ON ITS OWN DUE DILIGENCE AND UNDERTAKE PURCHASES AT ITS OWN RISK.
WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS OR REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OR SELLER OFFERS. ADDITIONALLY, WE SPECIFICALLY MAKE NO WARRANTY THAT USE OF THE GRAINBUYS.COM PLATFORM WILL RESULT IN BUYERS OF SELLER’S FEED COMMODITIES.
WE MAKE NO WARRANTY AS TO THE QUALITY OR ACCURACY OF THE LISTINGS OR SERVICES OR THE QUALITY OF THE PROPERTIES, AND IDENTITY, CHARACTER OR CONDUCT OF BUYERS AND SELLERS AND ASSUME NO RESONSIBILITY FOR A BUYER'S OR SELLER'S COMPLIANCE WITH ANY APPLICABLE LAWS AND REGULATIONS. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH USERS WITH WHOM YOU COMMUNICATE OR INTERACT, AS A RESULT OF YOUR USE OF THE SERVICES - PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. GRAINBUYS.COM EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY BUYER, SELLER, OR OTHER THIRD PARTY.
You will indemnify, defend and hold harmless Grainbuys.com and its officers, directors, employees and agents, from and against any and all claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services (ii) your User Content; (iii) your violation of these Terms; (iv) your non-compliance with applicable law in connection with your posting of Listings and sale of Properties if you are a Seller, or your purchase of Properties if you are a Buyer; or (v) the acts or omissions of your third party property manager, real estate broker, agent, lender, or title or escrow company.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY CONTACT YOU HAVE WITH BUYERS, IF YOU ARE A SELLER, OR ANY CONTACT YOU HAVE WITH SELLERS IF YOU ARE A BUYER, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU.
NEITHER GRAINBUYS.COM NOR ANY GRAINBUYS.COM ENTITY OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT GRAINBUYS.COM HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT TO THE EXTENT REQUIRED BY LAW, IN NO EVENT WILL GRAINBUYS.COM'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS EXCEED THE AMOUNT OF GRAINBUYS.COM’S MONTHLY SUBSCRIPTION FEES IF YOU ARE A BUYER, OR IF YOU ARE A SELLER, THE AMOUNT OF GRAINBUYS.COM'S SALES COMMISSION FOR THE APPLICABLE LISTED FEED COMMODITY.
THE LAW OF SOME JURISDICTIONS DOES NOT ALLOW THE FOREGOINGEXCLUSIONS OR LIMITATIONS OF LIABILITY, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, OR ARE HEREBY MODIFIED TO ADHERE TO THE LAW OF SUCH JURISDICTIONS.
THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN GRAINBUYS.COM AND YOU.
These Terms and any action related thereto will be governed by the laws of the State of Idaho without regard to its conflict of laws provisions.
YOU AND GRAINBUYS.COM AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION. UNLESS BOTH YOU AND GRAINBUYS.COM AGREE, NO ARBITRATOR OR JUDGE MAY CONSOLIDTATE MORE THAN ONE PERSON’S CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Arbitration of Disputes
YOU AND GRAINBUYS.COM AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THESE TERMS OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF OR THE PROVISION OR USE OF THE SERVICES OR CONTENT (COLLECTIVELY, "DISPUTES") WILL BE SETTLED BY BINDING ARBITRATION, EXCEPT THAT YOU AND GRAINBUYS.COM RETAIN THE RIGHT: (I) TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT; AND (II) TO SEEK INJUNCTIVE OR OTHER EQUITABLE RELIEF IN A COURT OF COMPETENT JURISDICTION TO PREVENT THE ACTUAL OR THREATENED INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF A PARTY'S COPYRIGHTS, TRADEMARKS, TRADE SECRETS, PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS (THE ACTION DESCRIBED IN THE FOREGOING CLAUSE (II),(AN "IP PROTECTION ACTION").
Arbitration Opt Out
WITHOUT LIMITING THE PRECEDING SENTENCE, YOU WILL ALSO HAVE THE RIGHT TO OPT-OUT AND LITIGATE ANY OTHER DISPUTE IF YOU PROVIDE GRAINBUYS.COM WITH WRITTEN NOTICE OF YOUR DESIRE TO DO SO BY EMAIL OR REGULAR MAIL AT CONTACT@GRAINBUYS.COM WITHIN THIRTY (30) DAYS FOLLOWING THE DATE YOU FIRST ACCEPTED THESE TERMS (SUCH NOTICE, AN "ARBITRATION OPT-OUT NOTICE"). IF YOU DON'T PROVIDE GRAINBUYS.COM WITH AN ARBITRATION OPT-OUT NOTICE WITHIN THE THIRTY (30) DAY PERIOD, YOU WILL BE DEEMED TO HAVE KNOWINGLY AND INTENTIONALLY WAIVED YOUR RIGHT TO LITIGATE ANY DISPUTE EXCEPT AS EXPRESSLY SET FORTH IN CLAUSES (I) AND (II) ABOVE. THE EXCLUSIVE JURISDICTION AND VENUE OF ANY IP PROTECTION ACTION OR, IF YOU TIMELY PROVIDE GRAINBUYS.COM WITH AN ARBITRATION OPT-OUT NOTICE, WILL BE THE STATE AND FEDERAL COURTS LOCATED IN THE NORTHERN DISTRICT OF CALIFORNIA AND EACH OF THE PARTIES HERETO WAIVES ANY OBJECTION TO JURISDICTION AND VENUE IN SUCH COURTS. UNLESS YOU TIMELY PROVIDE GRAINBUYS.COM WITH AN ARBITRATION OPT-OUT NOTICE, YOU ACKNOWLEDGE AND AGREE THAT YOU AND GRAINBUYS.COM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY. IF THIS SPECIFIC PARAGRAPH IS HELD UNENFORCEABLE, THEN THE ENTIRETY OF THIS "DISPUTE RESOLUTION" SECTION WILL BE DEEMED VOID. EXCEPT AS PROVIDED IN THE PRECEDING SENTENCE, THIS "DISPUTE RESOLUTION" SECTION WILL SURVIVE ANY TERMINATION OF THESE TERMS.
THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (THE "AAA RULES") THEN IN EFFECT, EXCEPT AS MODIFIED BY THIS "DISPUTE RESOLUTION" SECTION. (THE AAA RULES ARE CURRENTLY AVAILABLE AT WWW.ADR.ORG/ARB_MED OR BY CALLING THE AAA AT 1-800-778-7879.) THE FEDERAL ARBITRATION ACT WILL GOVERN THE INTERPRETATION AND ENFORCEMENT OF THIS SECTION.
A PARTY WHO DESIRES TO INITIATE ARBITRATION MUST PROVIDE THE OTHER PARTY WITH A WRITTEN DEMAND FOR ARBITRATION AS SPECIFIED IN THE AAA RULES. (THE AAA PROVIDES A GENERAL DEMAND FOR ARBITRATION AND A SEPARATE DEMAND FOR ARBITRATION FOR CALIFORNIA RESIDENTS.) THE ARBITRATOR WILL BE EITHER A RETIRED JUDGE OR AN ATTORNEY LICENSED TO PRACTICE LAW AND WILL BE SELECTED BY THE PARTIES FROM THE AAA'S ROSTER OF ARBITRATORS. IF THE PARTIES ARE UNABLE TO AGREE UPON AN ARBITRATOR WITHIN TEN (10) DAYS OF DELIVERY OF THE DEMAND FOR ARBITRATION, THEN EITHER PARTY MAY REQUEST THAT THE AAA APPOINT THE ARBITRATOR IN ACCORDANCE WITH THE AAA RULES.
ARBITRATION LOCATION AND PROCEDURE
UNLESS YOU AND GRAINBUYS.COM OTHERWISE AGREE, THE ARBITRATION WILL BE CONDUCTED IN THE COUNTY OF JEROME, STATE OF IDAHO. IF YOUR CLAIM DOES NOT EXCEED $10,000, THEN THE ARBITRATION WILL BE CONDUCTED SOLELY ON THE BASIS OF THE DOCUMENTS THAT YOU AND GRAINBUYS.COM SUBMIT TO THE ARBITRATOR; UNLESS YOU REQUEST A HEARING, OR THE ARBITRATOR DETERMINES THAT A HEARING IS NECESSARY. IF YOUR CLAIM EXCEEDS $10,000, YOUR RIGHT TO A HEARING WILL BE DETERMINED BY THE AAA RULES. SUBJECT TO THE AAA RULES, THE ARBITRATOR WILL HAVE THE DISCRETION TO DIRECT A REASONABLE EXCHANGE OF INFORMATION BY THE PARTIES, CONSISTENT WITH THE EXPEDITED NATURE OF THE ARBITRATION.
THE ARBITRATOR WILL RENDER A FINAL AND BINDING AWARD WITHIN THE TIME FRAME SPECIFIED IN THE AAA RULES. THE ARBITRATOR'S DECISION WILL INCLUDE THE ESSENTIAL FINDINGS AND CONCLUSIONS UPON WHICH THE ARBITRATOR BASED THE AWARD. JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THE ARBITRATOR'S AWARD OF DAMAGES MUST BE CONSISTENT WITH THE TERMS OF THE "LIMITATION OF LIABILITY" PROVISIONS ABOVE AS TO THE TYPES AND AMOUNTS OF DAMAGES FOR WHICH A PARTY MAY BE HELD LIABLE. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE CLAIMANT AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THE CLAIMANT'S INDIVIDUAL CLAIM. IF YOU ARE THE PREVAILING PARTY OR THE MORE PREVAILING PARTY IN ARBITRATION, YOU WILL BE ENTITLED TO AN AWARD OF ATTORNEYS' FEES AND EXPENSES, TO THE EXTENT PROVIDED UNDER APPLICABLE LAW. GRAINBUYS.COM WILL NOT SEEK, AND HEREBY WAIVES ALL RIGHTS IT MAY HAVE UNDER APPLICABLE LAW TO RECOVER, ATTORNEYS' FEES AND EXPENSES, IF IT PREVAILS IN ARBITRATION.
YOUR RESPONSIBILITY TO PAY ANY AAA FILING, ADMINISTRATIVE AND ARBITRATOR FEES WILL BE SOLELY AS SET FORTH IN THE AAA RULES.
NOTWITHSTANDING THE PROVISIONS OF THE "CHANGES TO TERMS OR SERVICES" SECTION ABOVE, IF GRAINBUYS.COM MATERIALLY CHANGES THIS "ARBITRATION OF DISPUTES" SECTION AFTER THE DATE YOU FIRST ACCEPTED THESE TERMS (OR ACCEPTED ANY SUBSEQUENT CHANGES TO THESE TERMS), YOU MAY REJECT ANY SUCH CHANGE BY SENDING US WRITTEN NOTICE (INCLUDING BY EMAIL TO CONTACT@GRAINBUYS.COM) WITHIN 30 DAYS OF THE DATE SUCH CHANGE BECAME EFFECTIVE, AS INDICATED IN THE "LAST UPDATED" DATE NOTED AT THE BEGINNING OF THIS DOCUMENT OR IN THE DATE OF GRAINBUYS.COM'S EMAIL TO YOU NOTIFYING YOU OF SUCH CHANGE. BY REJECTING ANY CHANGE, YOU ARE AGREEING THAT YOU WILL ARBITRATE ANY DISPUTE BETWEEN YOU AND GRAINBUYS.COM IN ACCORDANCE WITH THE PROVISIONS OF THIS "DISPUTE RESOLUTION" SECTION AS OF THE DATE YOU FIRST ACCEPTED THESE TERMS (OR ACCEPTED ANY SUBSEQUENT CHANGES TO THESE TERMS).
These Terms constitute the entire and exclusive understanding and agreement between Grainbuys.com and you regarding the Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Grainbuys.com and you regarding the Services. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the "Arbitration" section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Grainbuys.com's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and void. Grainbuys.com may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Any notices or other communications provided by Grainbuys.com under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Grainbuys.com's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Grainbuys.com. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Grainbuys.com at firstname.lastname@example.org