THESE TERMS AND CONDITIONS APPLY TO YOUR USE OF THIS WEBSITE AND THE GNEX MARKET SO PLEASE TAKE TIME TO READ THEM
1. Introduction
1.1 We are GNEX Ltd, a company registered in England under company number 08480992. Our business is based in England and our registered office is at 20-22 Wenlock Road, London N1 7GU, England. Our VAT registration number is GB179522184.
1.2 We own and operate the GNEX platform, an online marketplace for professional buyers and sellers of almonds, which, amongst other things, provides its members with an internet-based platform for the trading of almonds and independent information and insight relating to the almonds industry.
1.3 Many of the GNEX services are provided via our web site, currently found at www.gnex.com and its sub-domains (site), which is administered from our offices in England. Once you have become a GNEX member, you will also be able to access certain of the GNEX services using the mobile application we make available through certain application stores (mobile app).
1.4 These terms and conditions set out our commitment to you and your commitment to us in respect of the GNEX services and your use of the site. If you are in the almonds trade and you wish to use the GNEX services then we require you to accept these terms and conditions as part of the membership process.
2. GNEX membership
2.1 To access most parts of the site and use the GNEX services (including the mobile app we make available) you must first register with us as a GNEX member.
2.2 As part of the membership registration process you will be asked to provide information such as your organisation name, business address, company registration number, VAT number (if applicable) and contact details (including a business email address). All fields marked as being mandatory must be completed.
2.3 The person that completes the membership registration process on your behalf will be asked to confirm that you accept and agree to be bound by these terms and conditions. You may not use the GNEX services if you do not accept these terms and conditions.
2.4 By completing the membership registration process:
(a) you represent and warrant to us that (i) you are subscribing to use the site and the GNEX services in the course of your business; (ii) you are in the almonds trade; and (iii) all of the information you have provided as part of the registration process is complete, accurate and up to date; and
(b) the person that completes the registration process on your behalf represents and warrants to us that he/she (i) is authorised to act for you for the purposes of making your membership application; and (ii) has the capacity to understand and accept these terms and conditions on your behalf.
2.5 Once you have submitted your membership application, we will send you a confirmation in writing (which may be by email) confirming receipt of your application. You acknowledge and agree that we or our representatives may approach third parties for the purpose of obtaining references regarding your suitability to be a GNEX member.
2.6 Once we have reviewed your application, we will send you confirmation in writing (which may be by email) of whether or not we accept your application to become a GNEX member. Our acceptance or non-acceptance of you as a GNEX member is completely at our discretion and, in the event we refuse your application, you may not re-apply for membership for at least six months.
2.7 Where we accept your application, the acceptance confirmation we send you (GNEX Membership Confirmation) will set out (amongst other things) the services and features that will apply to your membership. The membership process is complete, and a contract is formed between you and us for the provision of the GNEX services, at the time we send you a GNEX Membership Confirmation.
2.8 You may become a GNEX member for one or more membership periods of 12 months (each such period, a Membership Period). Your first Membership Period will start on the date on which a contract is formed between you and us for the provision of the GNEX services and your subscription will automatically renew for further Membership Periods until terminated in accordance with paragraph 34. Please note that, unless expressly stated otherwise in your Membership Confirmation, our provision of the GNEX services to you will not start until you have paid to us the membership fee for your first Membership Period in accordance with paragraph 23.
3. Your accounts
3.1 Once we have sent you a GNEX Membership Confirmation, we will activate an online master account for your primary user (Master User Account). The person you designate as your primary user is responsible for managing your membership, including managing the permissions and account usage rights associated with each Trading User Account and Back-Office User Account (as set out below).
3.2 Your primary user may set up individual:
(a) trading user accounts for each person in your organisation that you wish to appoint as an authorised trader to sell and/or buy almonds on your behalf using the GNEX platform (Trading User Account). You may also enable users of your Trading User Accounts to use any Trading Tools we make available from time to time to administer and fulfil contracts of sale you have entered into; and
(b) back-office accounts for each person in your organisation that you wish to appoint to view your trading activity on the GNEX platform and use any Trading Tools we make available from time to time to administer and fulfil contracts of sale you have entered into, without being able to sell and/or buy almonds on your behalf (Back-Office User Account).
3.3 You must assign each of your Trading User Accounts and Back-Office User Accounts to specific individuals within your organisation (multiple users are not permitted to use the same account) and keep the details of your authorised traders and authorised back office administrators up to date at all times using your Master User Account.
3.4 The number of Trading User Accounts and Back-Office User Accounts included with your GNEX membership will be stated on your Membership Confirmation. You may purchase additional Trading User Accounts and Back-Office User Accounts in accordance with paragraph 24. You may cancel any additional Trading User Account or Back-Office User Account that you have previously purchased at any time; you must however pay the monthly fee for each such account in respect of each month (or part month) during which you held the additional account in accordance with paragraph 24.
3.5 Each time you set up an authorised user with a Trading User Account or Back-Office User Account we will send them a username and password that allows them access to and use of the relevant parts of the GNEX services (Authorised User Credentials). Authorised users may change their Authorised User Credentials at any time using the Authorised User Credentials change facility found on the site.
3.6 You are responsible for ensuring that your authorised users (and other personnel) comply with these terms and conditions and you are responsible and liable to us for all the acts and omissions of all such persons. In particular, you are responsible for all consequences arising from the use or misuse of (i) any Authorised User Credentials; and (ii) your Master User Account and each Trading User Account and Back-Office User Account.
3.7 You also acknowledge and agree that instructions and actions (i) transmitted to us via your Master User Account or any Trading User Account or Back-Office User Account will be deemed to have originated from you; and (ii) given by telephone will be deemed to have originated from you if the relevant caller has correctly answered any security questions.
3.8 You must ensure that Authorised User Credentials are kept secret at all times and not disclosed to any unauthorised person. You must inform us immediately by sending an email to security@gnex.com if you become aware or suspect that some or all of any Authorised User Credentials are known by any person other than the relevant authorised user so that we can take appropriate action to prevent the misuse of such information.
3.9 We may record any telephone calls between us and you in order to ensure accuracy, provide verification of any details or instructions provided by you and maintain the quality of our service.
4. The GNEX platform
4.1 The main GNEX service we provide is the GNEX platform, through which GNEX members may buy and sell almonds. Only GNEX members are permitted to trade using the platform.
4.2 The GNEX platform is a market for the physical trading of almonds only and members are not allowed to trade on any other basis (for example, on a purely financial or investment basis, such as futures trading).
4.3 The GNEX platform is accessible through the site and our mobile app. Only GNEX members are permitted to download and use the mobile app.
4.4 You must ensure that any trading undertaken on your behalf using the GNEX platform is carried out by one of your authorised traders using their Trading User Account. You are responsible for all offers to buy or sell almonds that are placed or accepted using your account and all other trading, dealings and decisions that are made using your account.
4.5 You acknowledge that the GNEX platform does not represent the whole market for almonds and that offers for the sale or purchase of almonds placed or accepted on the platform may not be the best or most competitive price available for such almonds at any given time.
5. Approved counterparties
5.1 Trading on the GNEX platform is undertaken on an anonymous basis. This means that offers for the sale or purchase of almonds will be placed and accepted anonymously and that the identity of a GNEX member with whom you have agreed to buy or sell almonds will only be revealed once the trade has been executed.
5.2 So that you only trade using the GNEX platform with GNEX members that are acceptable to you as trading counterparties, you are required to set-up and maintain a list of approved trading counterparties.
5.3 You can set-up and manage your list of approved counterparties in order to (i) invite other GNEX members to become approved counterparties; (ii) accept invitations from other GNEX members that have asked to become one of your approved counterparties; and (iii) remove GNEX members that you have previously set-up as approved counterparties from your list of approved counterparties. Further information on how to do this can be found in the user guide available on the site.
5.4 You acknowledge and agree that:
(a) a GNEX member that you invite to become one of your approved counterparties will only become an approved counterparty (and you will only be able to trade with them through the GNEX platform) once they have accepted your invitation and confirmed that you are acceptable to them as a trading counterparty;
(b) a GNEX member that has previously been set-up as an approved counterparty will cease to become one of your approved counterparties if they decide to remove you as an approved counterparty or if they cease to be a GNEX member;
(c) we do not guarantee that any particular person will become or remain a GNEX member or that any GNEX member will (continue to) accept you as an approved counterparty; and
(d) in order to maintain the anonymity of GNEX members, if you request the removal of a GNEX member from your approved counterparty list, the removal will be effected at a time randomly selected by us within 48 hours of our receipt of your request. You are responsible for (and must honour) all contracts of sale that you enter into with an approved counterparty that you have asked us to remove from your approved counterparty list prior to the effective time of such removal.
5.5 Only GNEX members may be set-up as approved counterparties. If you wish to invite an organisation in the almond trade to become a GNEX member you may do so in accordance with the procedures for inviting new members, which can be found in the user guide available on the site. There is, however, no guarantee that any such organisation will become a GNEX member and accept you as an approved counterparty.
6. Commodity Definitions
6.1 All almonds traded through the GNEX platform must comply and be traded in accordance with one of the standardised almond product commodity definitions listed on the site and the mobile app (Commodity Definition).
6.2 Each Commodity Definition sets out:
(a) the specifications with which almonds traded under the definition must comply, such as the almond variety, origin, grade, size and yield;
(b) certain standardised arrangements relating to the fulfilment of trades made under the definition, such as the quantity per load, packaging arrangements and the Incoterm that applies (subject to any changes made to the Incoterm under the terms of the applicable GNEX-SATA) in respect of the fulfilment of such trades; and
(c) the version of the GNEX-SATA that will apply to govern any contract of sale that you enter into for the sale or purchase of almonds traded under the definition (please see paragraph 7 below for more information).
6.3 The Commodity Definitions have been chosen to meet the highest volume everyday trading requirements for buyers in different geographic regions and the definitions include in-shell and shelled almond commodities. We reserve the right to add to, remove and/or change any of the Commodity Definitions at any time without explanation and without incurring any liability to you. Any changes we make to the Commodity Definitions will not affect trades you have executed prior to the change taking effect.
7. GNEX-SATAs
7.1 The Standard Almond Trading Agreements (GNEX-SATAs) are a suite of standard trading agreements that we have created to make it possible for GNEX members to buy and sell physical almonds on the GNEX platform using a standardised set of terms and conditions.
7.2 GNEX members are required to use the applicable version of the GNEX-SATA when they trade on the GNEX platform and you acknowledge and agree that:
(a) each trade that you execute using the platform shall create a binding contract of sale that incorporates and is governed by the terms and conditions of the applicable GNEX-SATA;
(b) the version of the GNEX-SATA that applies in respect of, and that is incorporated into and governs, each such contract of sale is specified in the Commodity Definition with which the almonds that are the subject of the trade must comply and be traded in accordance with; and
(c) the terms and conditions of the applicable version of the GNEX-SATA are appropriate for the trades you execute using the platform.
7.3 We may change the terms and conditions of any of the GNEX-SATAs at any time without explanation and without incurring any liability to you. If we do this we will post the revised version of the relevant GNEX-SATA on the site and we will notify GNEX members of the change by either sending them an email or posting a notification on the site. Unless we inform you otherwise, a change will take effect seven days after the date that we issue the notification. Any changes we make to a version of the GNEX-SATA will not affect the terms and conditions of any contracts of sale you have entered into prior to the change taking effect.
7.4 Any trades that you execute after the date a change takes effect will incorporate the terms and conditions of the applicable GNEX-SATA as amended by the change. We will take your continued use of the GNEX services as your acceptance of the change, so if an amendment is not acceptable to you then you should stop using the site, the mobile app and the GNEX services.
7.5 For so long as you are a GNEX member, you may also contract with persons who are not GNEX members for the sale or purchase of physical almonds outside of the GNEX platform using the applicable version of the GNEX-SATA. You will be solely responsible for your use of GNEX-SATA outside of the GNEX platform and to the extent permitted by applicable law we will have no liability to you in respect of such use.
7.6 Your right to use the GNEX-SATAs on the basis set out in paragraph 7.5 will cease with effect from the date on which you cease to be a GNEX member. Accordingly, you agree to stop using the GNEX-SATAs (other than in respect of contracts of sale you have previously entered into) with effect from the date that you cease to be a GNEX member.
7.7 As between you and us, you agree that we own all intellectual property rights (including copyright) subsisting in the GNEX-SATAs.
8. Introduction
You may use the GNEX platform to sell almonds by either (i) making an offer to sell almonds through the GNEX platform; or (ii) accepting a bid to buy almonds placed through the GNEX platform by another GNEX member.
9. Making an offer to sell almonds on the GNEX platform
9.1 You may offer to sell almonds through the GNEX platform in accordance with the procedures for making an offer to sell almonds, which can be found in the user guide available on the site.
9.2 At the time you make the offer, you will be required to select the Commodity Definition with which the almonds you are offering to sell comply and in accordance with which you will be required to fulfill the trade if your offer to sell is accepted by another GNEX member.
9.3 You should make sure that (i) the almonds you offer for sale meet the specifications of the Commodity Definition you have selected; and (ii) all information provided by you in relation to the offer is accurate, complete and up-to-date. You are liable for any errors and omissions in the information you provide.
9.4 Whilst each offer you make to sell almonds will be posted on the GNEX platform and will be visible (on an anonymous basis) to each other GNEX member, the offer will only be capable of being accepted by a GNEX member that (i) is on your approved counterparty list; and (ii) has accepted you as an approved counterparty, as at the point at which the offer is accepted.
10. Accepting a bid placed by another GNEX member to buy almonds
10.1 Bids to buy almonds placed through the GNEX platform by other GNEX members will be displayed on the platform on an anonymous basis. Each bid placed on the platform will set out the Commodity Definition with which the almonds that are the subject of the bid must comply and in accordance with which the member requires the trade to be fulfilled if the bid is accepted by another GNEX member.
10.2 Whilst each bid to buy almonds will be visible (on an anonymous basis) on the GNEX platform to GNEX members, you will only be able to accept a bid if the GNEX member that placed the bid (i) is on your approved counterparty list; and (ii) has accepted you as an approved counterparty, as at the point at which you wish to accept the offer.
10.3 Your acceptance of any bid to buy almonds placed by another GNEX member will create a binding contract of sale, so you should make sure you are able to fulfill the trade before you accept the bid.
11. Introduction
You may use the GNEX platform to buy almonds by either (i) making a bid to buy almonds through the GNEX platform from another GNEX member; or (ii) accepting an offer placed through the GNEX platform by another GNEX member to sell almonds.
12. Making a bid to buy almonds from another GNEX member
12.1 You may make a bid to buy almonds through the GNEX platform in accordance with the procedures for making a bid to buy almonds, which can be found in the user guide available on the site.
12.2 At the time you make the bid, you will be required to select the Commodity Definition with which the almonds you wish to buy must comply and in accordance with which you require the trade to be fulfilled if your bid to buy almonds is accepted by another GNEX member.
12.3 You should make sure that all information provided by you in relation to your bid to buy is accurate, complete and up-to-date. You are liable for any errors and omissions in the information you provide.
12.4 Whilst each bid you make to buy almonds will be posted on the GNEX platform and will be visible (on an anonymous basis) to each other GNEX member, the bid will only be capable of being accepted by a GNEX member that (i) is on your approved counterparty list; and (ii) has accepted you as an approved counterparty, as at the point at which the bid is accepted.
13. Accepting an offer to sell almonds made by another GNEX member
13.1 Offers to sell almonds made through the GNEX platform by other GNEX members will be displayed on the platform on an anonymous basis. Each offer made will set out the Commodity Definition with which the almonds that are the subject of the offer must comply and in accordance with which the selling member requires the trade to be fulfilled if the offer is accepted by another GNEX member.
13.2 Whilst each offer to sell almonds will be visible (on an anonymous basis) on the GNEX platform to GNEX members, you will only be able to accept an offer if the GNEX member that made the offer (i) is on your approved counterparty list; and (ii) has accepted you as an approved counterparty, as at the point at which you wish to accept the offer.
13.3 Your acceptance of any offer to sell almonds placed by another GNEX member will create a binding contract of sale, so you should make sure you are able to fulfill the trade before you submit your acceptance.
14. Amending or withdrawing offers to sell and bids to buy almonds
14.1 You acknowledge and agree that:
(a) each offer to sell, or bid to buy, almonds that you make through the GNEX platform is a firm and unconditional offer to sell or buy, as applicable, which, until withdrawn or amended by you in accordance with paragraph 14.2, may be accepted by another GNEX member at any time; and
(b) you bear all risk that an offer to sell, or a bid to buy, almonds that you have made and which you subsequently wish to withdraw or amend is accepted by another GNEX member before (i) you have had the opportunity to withdraw or amend the offer or bid (including in circumstances where for any reason the site or mobile app is unavailable or the offer or bid withdrawal or amendment function is offline); or (ii) any withdrawal or amendment you have made takes effect on the platform in accordance with paragraph 14.2.
14.2 You may amend or withdraw an offer to sell, or a bid to buy, almonds that you have made through the GNEX platform in accordance with the procedures for amending or withdrawing offers and bids, which can be found in the user guide on the site. Any amendment you make will be deemed to take effect from the time it is posted on the platform. Any withdrawal you make will be deemed to take effect from the time the offer or bid, as applicable, is withdrawn from the platform.
15. Execution of trades
15.1 Trades are executed electronically on the GNEX platform.
15.2 In respect of each offer to sell, or bid to buy, almonds that you make on the GNEX platform that is accepted by another GNEX member, a legally binding contract of sale is made, and a trade is executed, between you and the GNEX member at the time the GNEX member electronically accepts the offer or bid, as applicable, using the platform. Following acceptance by the GNEX member of your offer to sell or bid to buy, as applicable, we will:
(a) notify you through the GNEX platform and by email that your offer to sell, or bid to buy, almonds has been accepted by another GNEX member;
(b) generate a trade confirmation in respect of the trade in the form required by the applicable version of the GNEX-SATA. The trade confirmation will confirm the identity of the GNEX member that has accepted your offer to sell, or bid to buy, almonds; and
(c) remove your offer to sell, or bid to buy, almonds from the GNEX platform, save that where your offer to sell, or bid to buy, almonds includes multiple lots and the GNEX member that accepted your offer or bid only accepted the offer or bid in respect of some (but not all) of those lots, your offer to sell, or bid to buy, the remaining lots will remain visible (and open for acceptance by other GNEX members on your approved counterparty list) on the platform.
15.3 In respect of each offer to sell, or bid to buy, almonds that has been made by another GNEX member using the GNEX platform that you accept, a legally binding contract of sale is made, and a trade is executed, between you and the GNEX member at the time you electronically accept the offer or bid, as applicable, using the platform. Following your acceptance of the offer to sell or bid to buy, as applicable, we will:
(a) notify you through the GNEX platform and by email that your acceptance has been communicated to the GNEX member that made the offer to sell or bid to buy;
(b) generate a trade confirmation in respect of the trade in the form required by the applicable version of the GNEX-SATA. The trade confirmation will confirm the identity of the GNEX member whose offer to sell, or bid to buy, you have accepted; and
(c) remove the offer to sell or bid to buy almonds that you have accepted from the GNEX platform, save that where the offer to sell, or bid to buy, almonds made by the GNEX member includes multiple lots and you have only accepted the offer or bid in respect of some (but not all) of those lots, the GNEX member's offer to sell, or bid to buy, the remaining lots will remain visible (and open for acceptance by other GNEX members) on the platform.
16. Contracts of sale
16.1 Each contract of sale you enter into using the GNEX platform is a separate agreement between you and the relevant GNEX member that incorporates the terms and conditions of the applicable version of the GNEX-SATA (as determined by reference to the Commodity Definition that applies in respect of the almonds that are the subject of the trade).
16.2 In accordance with the terms of the applicable GNEX-SATA, each contract of sale you enter into consists of (i) the Trade Confirmation (as defined in the applicable GNEX-SATA); (ii) the Product Specification (as defined in the applicable GNEX-SATA); and (iii) the terms and conditions of the applicable GNEX-SATA.
16.3 For the purposes of the applicable GNEX-SATA, and in respect of each contract of sale you enter into using the GNEX platform:
(a) a 'Trade' (as defined in the applicable GNEX-SATA) shall take place at the time that the contract of sale is entered into between you and the relevant GNEX member in accordance with these terms and conditions;
(b) the offer to sell, or bid to buy, almonds (which includes the Commodity Definition set out in the offer or bid, as applicable) that was accepted by you or the relevant GNEX member, as applicable, in forming the contract of sale shall be the 'Trade';
(c) the contract of sale shall be a 'Contract' (as defined in the applicable GNEX-SATA);
(d) the trade confirmation generated by the platform for the contract of sale shall be the 'Trade Confirmation'; and
(e) the Commodity Definition set out in the offer to sell, or bid to buy, almonds that was accepted by you or the relevant GNEX member, as applicable, in forming the contract of sale shall be the 'Product Specification'.
16.4 It is important for your continued membership that you honour your obligations under each contract of sale you enter into.
17. Agency
17.1 You acknowledge that, because offers to sell, or bids to buy, almonds are made and accepted on the GNEX platform anonymously, we act, in respect of each trade that takes place on the platform, as both (i) the agent of the GNEX member that makes the offer to sell, or bid to buy, almonds through the platform; and (ii) the agent of the GNEX member that accepts that offer to sell, or bid to buy, as applicable.
17.2 In particular, you acknowledge and agree that:
(a) in respect of each offer to sell, or bid to buy, almonds that you make through the GNEX platform, in making your offer or bid on the platform on your behalf, we shall act as your agent and, where your offer or bid is accepted by another GNEX member, we shall also act (and you hereby authorise us to act) as agent (i) for the other GNEX member in communicating the acceptance to you for and on its behalf; and (ii) for both you and the other GNEX member in concluding the contract of sale made at the time your offer or bid, as applicable, is accepted;
(b) in respect of each offer to sell, or bid to buy, almonds that has been made by another GNEX member using the GNEX platform that you accept, we shall (i) act as your agent in communicating your acceptance to the GNEX member on your behalf; and (ii) also act (and you hereby authorise us to act) as agent for both you and the GNEX member in concluding the contract of sale made at the time that you accept the offer or bid, as applicable;
(c) where we act as your agent and/or the agent of another GNEX member, we will do so under and in accordance with these terms and conditions and our role as agent shall be strictly limited to (i) making offers to sell, or bids to buy, almonds; (ii) communicating the acceptance of offers to sell, or bids to buy, almonds; and (iii) concluding contracts of sale between GNEX members for and on behalf of the relevant principals;
(d) we are not involved in the negotiation of any contract of sale nor do we take any money under or pursuant to any contract of sale;
(e) save as otherwise expressly stated in these terms and conditions, in respect of each contract of sale that we enter into for and on your behalf as agent, we shall not, as your agent, have any further obligations to you in respect of the contract of sale following its conclusion; and
(f) we are not party to any contract of sale and we shall have no obligations or liability to you or any other GNEX member under any contract of sale.
17.3 Nothing in these terms and conditions shall be construed as (i) making us and you (or any other GNEX member) partners or joint venturers; or (ii) rendering us liable for any of your debts or obligations or the debts or obligations of any other GNEX member.
18. Ratification and indemnity
18.1 Where we act as your agent under and in accordance with these terms and conditions, you agree to ratify any acts properly and lawfully done by us.
18.2 You agree to indemnify us (and keep us indemnified on an ongoing basis) against all claims, demands, actions, costs, damages, losses and expenses (including legal costs and disbursements on a solicitor and client basis) that we incur:
(a) as a result of your failure to comply with any of your obligations under these terms and conditions; and/or
(b) in relation to any claims or other legal action taken against us in respect of any contract of sale that you have entered into.
19. Trading limits
19.1 We may (but we are not obliged to) enable you to set up and manage buying and selling limits in respect of your approved counterparties. These are financial limits on your maximum net buying or selling exposure, as applicable, to other GNEX members on your approved counterparty list in relation to your use of the GNEX platform. Where we enable you to set up such trading limits, if a prospective trade will cause you to exceed your trading limit then the GNEX platform will notify you of this and/or not allow you to complete the prospective trade.
19.2 You acknowledge and agree that any trading limits that we enable you to set are guide limits only, that it may be possible for your users to bypass your chosen trading limits and that any contract of sale entered into using the GNEX platform that breaches any trading limit set by you shall still constitute a legally binding contract of sale and a validly executed trade.
20. Using the GNEX platform to administer your trades
20.1 As part of the GNEX platform, we may from time to time make available a range of free to use tools (Trading Tools) to help you to administer and fulfil contracts of sale you have entered into – for example, a workflow management tool to help remind you about key dates relating to the performance of your contracts of sale.
20.2 The Trading Tools are only intended to be tools to help you fulfil your contractual obligations under contracts of sale you have entered into. You should not rely on the tools to perform your obligations and you acknowledge and agree that (i) we may at any time amend, update or cease to provide any Trading Tool without notice or explanation; and (ii) where we cease to provide a Trading Tool or it is otherwise unavailable, you will still be required to perform your contractual obligations under each contract of sale in accordance with its terms (and you must, in such circumstances, find alternative means for doing so).
21. Feedback
21.1 We may (but we are not obliged to) make available a feedback tool on the GNEX platform which enables you to leave feedback in respect of GNEX members with whom you have entered into contracts of sale.
21.2 Where we choose to make a feedback tool available:
(a) you must ensure that any feedback you leave is (i) fair and reasonable; and (ii) not inaccurate, misleading, defamatory, obscene, abusive or offensive. You must not use any such feedback tool to promote or advertise yourself or any products or services you may offer; and
(b) we will not routinely monitor, moderate or approve feedback posted by GNEX members; however we may remove feedback posted on the GNEX platform by GNEX members which, in our sole discretion, we consider inappropriate or objectionable.
22. GNEX market information
22.1 As part of the GNEX services, we may make available from time to time to GNEX members GNEX market information, such as pricing data, charts, assessments, analyses, commentary, opinion pieces or other forms of market insight.
22.2 The GNEX market information is our confidential information and is and shall remain at all times our property (or the property of our licensors). As a GNEX member, we provide you with access to the GNEX market information solely for you to use for the following purposes:
(a) keeping up-to-date generally about the price of almonds and the almond market; and
(b) buying and selling almonds through the GNEX platform.
22.3 You are not entitled to reproduce, duplicate, copy, publish, sell or resell the GNEX market information. You may not use or exploit the GNEX market information for any purpose other than the purposes set out in paragraph 22.2 or any other purpose for which we give you express and specific written permission. In particular, you must not:
(a) use the GNEX market information in any advertising or marketing;
(b) use the GNEX market information in any form of informational or journalistic communications such as newsletters and trend analysis reports;
(c) export or copy any of the GNEX market information onto other databases, or repeatedly extract individual items of the GNEX market information; or
(d) use the GNEX market information for benchmarking, valuation or the development or use in financial products.
22.4 If (as contemplated by paragraph 22.3) we give you express and specific written permission to use the GNEX market information for any additional purpose, you agree to acknowledge us (through the use of the GNEX trade mark or web address gnex.com) as the source of the information and indicate that we are the owners of all rights therein, including, without limitation, copyright, confidential information and database rights.
22.5 The GNEX market information is supplied by us on an “as is” and “as available” basis. You acknowledge and accept that the GNEX market information is created through subjective analysis of available data which may be open to other interpretations, and as such does not constitute a precise scientific determination. It is not and should not be relied on as being trading, investment, financial or any other form of advice. To the extent permitted by applicable law, we are not liable to you or to any third party for any inaccuracies, errors or omissions contained in the GNEX market information, nor for any loss or damage, whether direct, indirect or consequential, suffered by you or by any third party in respect of any reliance you or a third party place on any GNEX market information; and to the extent permitted by law we expressly exclude all warranties, conditions and representations, express or implied, in this regard.
22.6 We retain full editorial control over the GNEX market information and we may change the content and format of the information without notice.
23. Membership fees
23.1 We charge a fixed yearly membership fee for the supply of the GNEX services for each Membership Period.
23.2 The membership fee payable by you for a Membership Period will be calculated based upon the fee tariff in force as at the start of your Membership Period. Details of the current membership fee tariff can be found on the site or obtained from us on request. We may change the fee tariff from time to time.
23.3 Unless we agree otherwise in writing, for (i) each Membership Period, we will invoice you and you must pay the total membership fee in full in advance; and (ii) the first Membership Period, you must pay us the total membership fee before we will provide you with access to the GNEX services. Any changes to these standard payment terms that we agree to will be confirmed by us in writing and set out in the Membership Confirmation we send you. All membership fees are non-refundable.
24. Additional Trading User Accounts and Back-Office User Accounts
24.1 We charge a fixed monthly fee for each additional Trading User Account or Back-Office User Account that you purchase. Details of the current additional account fees can be found on the site. We may change the additional account fees from time to time.
24.2 At the start of each month we will invoice you for the additional account fees that are payable by you for the previous month and you shall pay the amount set out in the invoice within 21 days of the date of the invoice. All additional account fees are non-refundable.
25. Transaction fees
25.1 We charge a transaction fee for each contract of sale you enter into through the GNEX platform. Details of the current transaction fees can be found on the site. We may change the transaction fees from time to time.
25.2 Where our transaction fees are calculated by reference to the weight of almonds sold, the weight used to calculate the fee shall be the weight of almonds stated on the trade confirmation, save that where, in respect of any contract of sale you enter into:
(a) you agree with the relevant GNEX member to increase the weight of almonds sold under the contract of sale, you agree (i) to promptly notify us by email at notifications@gnex.com, providing details of the weight increase; and (ii) that, for the purposes of calculating our transaction fee, the weight used to calculate the fee shall, subject to paragraph 25.2(b), be the increased weight of almonds (and not the weight set out in the trade confirmation); and
(b) the weight of almonds to be sold under the contract of sale is "about" or "+/- a given percentage of" a stated weight of almonds, you agree, for the purpose of calculating our transaction fee, that (i) the weight used to calculate the fee shall be the stated weight; and (ii) the fact that the actual delivered weight of almonds may be different from the stated weight will be disregarded. For example, if the weight stated on a trade confirmation is "about 44,000 lbs" or "44,000 lbs +/- 5%", then the transaction fee shall be calculated by reference to the stated weight of 44,000 lbs.
25.3 We will invoice you for transaction fees and you shall pay the amount set out in the invoice by the payment due date:
(a) for contracts of sale for Spot or Afloat shipments or for contracts of sale specifying a shipment period within 14 days the payment is due within 21 days of the contract of sale date; and
(b) for other contracts of sale payment is due by the 21st day of the calendar month containing the start of the shipment period specified in the contract of sale.
25.4 All transaction fees are non-refundable. In particular, transaction fees will remain payable even where the contract of sale to which the fee relates is cancelled or not properly performed.
26. Payments
26.1 All fees and any other payments payable under or in connection with these terms and conditions are, unless stated otherwise, exclusive of VAT and all other sales tax and are subject to the addition of VAT and other sales tax (if applicable) at the appropriate rate.
26.2 All payments made by you or us will be made in United States Dollars unless otherwise agreed.
26.3 You must make all payments due to us by electronic transfer, without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
26.4 Please note that in respect of each sum you owe us you are obliged to ensure that we receive in cleared funds a sum equal to the total amount you owe us. This means that it is your responsibility to cover any bank charges applied by your bank in respect of the payment and to ensure that the amount that reaches our bank account net of bank charges is equal to the total amount you owe us.
26.5 If any of our fees are not paid by you by the date payment is due, we reserve the right (without prejudice to any other rights that we may have at law and/or under these terms and conditions) to (i) suspend provision of the GNEX services in accordance with paragraph 33 from the due date until the date that all outstanding fees are paid in full; and (ii) charge interest on the unpaid sum at a monthly rate of 1.5 per cent, which interest shall accrue on a daily basis from the due date to the date of payment of the outstanding amount in full (whether before or after any judgment).
27. Availability of the site, mobile app and the GNEX services
27.1 Subject to the other provisions of these terms and conditions, we will use reasonable endeavours to ensure that the site, the mobile app and the online aspects of the GNEX services (such as the online GNEX platform) are available at all times.
27.2 Notwithstanding paragraph 27.1, there will be times when the site, the mobile app and those services are unavailable. Such unavailability may be planned (for example, where we are carrying out planned maintenance or upgrades) or unplanned (for example, where there is a hardware or software failure). Where possible, we will try to give you reasonable notice of any such unavailability and we will use reasonable endeavours to ensure that disruption resulting from any unavailability is kept to a minimum.
27.3 You acknowledge and accept that you will not be able to use the site, the mobile app and the GNEX services when they are unavailable. We will try to keep unavailability to a minimum, but we accept no liability for any loss or damage you may suffer as a result of the site, the mobile app and/or the GNEX services being unavailable. We reserve the right to add to or change the site and/or mobile app at any time without notice or explanation and without incurring any liability to you.
27.4 As part of our security measures to protect the site, the mobile app and the GNEX platform, you acknowledge and agree that we may temporarily or permanently block your access to the site or mobile app from certain IP addresses or geographies where we consider that there may be a security risk. Where we do this we will try to contact you to inform you about the block and discuss alternative means through which you may access the GNEX platform.
28. Your use of the GNEX services
28.1 You are responsible for providing suitable internet access, computers, mobile devices and telephones to access and use the site, the mobile app and the GNEX services and for any telecommunications costs you incur in connection with your use. Please note that the quality of your computers or mobile devices and the quality of your connection will affect your use of the site, the mobile app and the GNEX services (for example, the site or mobile app may seem slow if you have a poor connection).
28.2 You should also check that your computers and mobile devices have suitable protection, such as virus protection. We are not responsible for any computer virus or bug that affects your computers, mobile devices or data as a result of your use of the site, the mobile app or the GNEX services or the downloading of any materials from the site or mobile app.
28.3 You agree to use the site, the mobile app and the GNEX services for lawful purposes only and in a manner which is consistent with any and all applicable laws and regulations in the country in which you are established or access the site or the mobile app. Your use of the site and the mobile app must not infringe the rights of, or restrict or inhibit the use and enjoyment of the site or mobile app by, any third party.
28.4 You agree not to import or transfer to the site or the mobile app either directly or indirectly any information or other content which is or may be (i) inaccurate, misleading, defamatory, obscene, abusive or offensive; (ii) in breach of any intellectual property right, privacy, publicity or any other rights of any third party; or (iii) damaging to the software or performance of the site or mobile app.
28.5 You agree that you shall not (and you shall ensure that your traders and other personnel shall not):
(a) disclose or publicise your identity to other GNEX members when using the GNEX platform (other than as part of the process of managing your approved counterparties);
(b) impersonate any legal or natural person (whether real or fictitious) when using the site, the mobile app or the GNEX platform;
(c) in respect of any offer to sell, or bid to buy, almonds made on the GNEX platform:
(i) try to find out, or reveal, the identity of the GNEX member that made the offer or bid, as applicable;
(ii) disclose the price of the offer or bid to any person other than a person within your organisation or the GNEX member that made the offer or bid, as applicable; or
(iii) conclude (or try to conclude) a trade in respect of the offer or bid with another GNEX member outside of, and without using, the GNEX platform;
(d) directly or indirectly manipulate the price of almonds offered for sale or purchased through the GNEX platform;
(e) use the site, the mobile app or GNEX platform to send unsolicited or unauthorised advertising such as "junk mail" or "spam"; or
(f) engage in any other conduct which, in our sole discretion, is considered inappropriate, unauthorised or objectionable.
29. Links
Where we provide hypertext links to other web sites or contacts, we do so for information purposes only and such links do not constitute an endorsement or recommendation by us of any products or services in such sites. You use such links entirely at your own risk and we accept no responsibility for the content or use of such web sites or for the information contained on such sites (including any web site through which you may have gained access to the site). You may not create a link to the site, nor frame it without our written permission.
30. Content
30.1 Information posted on the site or mobile app is either posted by us or by other GNEX members. We are not responsible for information posted by GNEX members.
30.2 Although we take pride in the site and mobile app and aim to keep it up to date, please note that information we post may, at times, be incomplete, out of date or inaccurate. If you wish to rely on any information we post then we recommend that first you confirm with us that the information you wish to rely on is correct. The content of the site and mobile app is subject to change at any time.
30.3 Upon becoming a GNEX member, you grant to us a non-exclusive, royalty-free, irrevocable and world-wide licence to use any images, information, logos, marks, text, graphics, and any other content that you provide to us and/or upload or otherwise add to the site or mobile app in connection with the GNEX services subject to and in accordance with these terms and conditions. Such use will include modifying such content and publicly displaying it on the site, the mobile app or using as part of the GNEX market information. We may use this content both whilst you are a GNEX member and following the end of your membership. You warrant and represent to us that (i) you have the right to grant to us the rights and licences granted (or purported to be granted) under this paragraph 30.3; and (ii) the exercise of any of the rights or licences granted (or purported to be granted) to us under this paragraph 30.3 neither infringes nor will infringe the rights (including the intellectual property rights) of any third party.
30.4 You agree not to use the mark GNEX or Global Nut Exchange or any other trademarks owned by us, or imply any association with or endorsement by GNEX or Global Nut Exchange except as specifically permitted under these terms and conditions.
30.5 We own or are licensed to use all copyright, trademarks and other intellectual property rights in and/or relating to (i) the site, the mobile app and the GNEX services; and (ii) the GNEX-SATA. You may use those intellectual property rights only as set out in these terms and conditions. You may not distribute, disseminate, show in public or create any derivative works of any materials that are not yours that you find on, or copy or download from, the site and/or the mobile app.
30.6 In particular, you must not use any robot, spider, scraper, site search/retrieval application or other manual or automatic device (including, by way of example, by taking 'screenshots' of the site or mobile app) to retrieve, index, "scrape," "data mine" or in any way gather content or materials, including but not limited to the GNEX market information, from the site or mobile app or reproduce or circumvent the navigational structure or presentation of the site or mobile app. You agree to comply with any robot exclusion files or headers on the site.
31. Your data
31.1 Subject to paragraph 31.2, you acknowledge and agree that we may use any information you provide to us, or which is generated by your use of the GNEX services for the following purposes:
(a) to provide the GNEX services; and
(b) to generate and make available to third parties aggregated or anonymised data and information that does not identify you by name (or any other unique identifier) relating to the GNEX market or global almond market – including research, indices, pricing and trading analyses (including anonymised examples of individual trades undertaken and bids and offers listed on the GNEX platform), market insight and assessments, commentary and insight (including the generation and provision of any GNEX marketing information we make available on the site or mobile app).
31.2 We will not disclose to any third party the details of your approved counterparties or any contract of sale you enter into, save that we may disclose such information (i) to our personnel, sub-contractors and other group companies as reasonably required by us to provide the GNEX services to you; (ii) to the GNEX member with whom you have entered into the contract of sale; (iii) to our professional advisors for use in their professional capacity; and/or (iv) where we are required to disclose such information by any regulation, court order or regulatory authority.
31.3 We store certain electronic data for you as part of the GNEX services. Our storage facilities are designed to be secure, but no facility can guarantee protection either in terms of unauthorised access or loss of or damage to information. We are not responsible for any loss of, access to, deletion or alteration of, any data that we store for you as part of the GNEX services.
31.4 To the extent that you become aware of, or we disclose or make available to you, any information or material of a confidential nature (whether written, oral or in electronic form) concerning our business and affairs (including our current or future business plans), you acknowledge and agree that (i) such information and materials are strictly confidential; and (ii) you will not disclose such information or materials to any third party and you will use all reasonable efforts to prevent any such disclosure, save where such information or materials become public knowledge (other than as a result of you breaching this obligation of confidentiality).
32. Data protection
32.1 We are data controllers of the personal information we collect in connection with your membership and use of the site, the mobile app and the GNEX services. The information we collect is made up from the details you and others give to us during your relationship with us and includes information you give us during your application for membership, information from your subsequent communications and instructions, and other information we gain from providing you with the site, the mobile app and the GNEX services. We will use this information for the following purposes (which may involve transferring such personal information to countries outside of the European Economic Area):
(a) to provide you with the site, the mobile app and the GNEX services and to carry out our obligations under these terms and conditions;
(b) to comply with legal and regulatory requirements;
(c) to carry out credit checks, to detect, investigate and prevent fraud and to trace debtors;
(d) for internal analysis and research; and
(e) to contact you by post, email or phone or other permitted means with details of additional products and services which may be of interest to you. Data subjects can tell us at any time if they would prefer not to receive such direct marketing.
32.2 We may disclose personal information to (i) our agents, sub-contractors and service providers for the purposes set out in paragraph 32.1; (ii) credit reference agencies, the police, Government departments and agencies for the purposes set out in paragraph 32.1(c); and (iii) any person for the purposes set out in paragraph 32.1(b).
32.3 We will take appropriate steps to help prevent the loss, misuse or unauthorised disclosure of the personal information we collect and will try to keep such information accurate and up to date.
32.4 Data subjects have the right to ask for a copy of the personal information we hold about them. If a data subject finds at any time that any of the information we hold about them is incorrect then they should notify us and we will correct the inaccuracy.
32.5 Before you or a third party on your behalf gives us any personal information you must inform the individuals concerned that you are giving the personal information to us and that it will be used in the manner and for the purposes described above and you must obtain their informed consent to such use.
32.6 The site uses a small number of non-intrusive cookies. You can read more about how the site uses cookies by clicking here.
33. Suspension
33.1 We may suspend your membership, which entitles you to use the site, the mobile app and the GNEX services under your terms of membership, or any part of it (including, by way of example, any of your individual user accounts, such as individual Trading User Accounts), with immediate effect if you commit any breach of these terms and conditions.
33.2 Where we suspend your membership, you acknowledge and agree that:
(a) you will be unable to use the GNEX platform to enter into any new contracts of sale during the period of your suspension, either in its entirety or in part (for example, in respect of any individual Trading User Accounts or Back-Office User Accounts that we suspend);
(b) you must continue to honour all contracts of sale that you entered into prior to your suspension; and
(c) we may, at our discretion, continue to allow you to access and use some or all of the Trading Tools made available on the GNEX platform to help you perform those contracts of sale.
34. Termination
34.1 You may terminate your membership, which entitles you to use the site, the mobile app and the GNEX services under your terms of membership, without cause and at any time by giving us not less than 30 days' prior written notice of such termination either by email (to notifications@gnex.com) or by post (to our current trading address, as stated on the site).
34.2 We may terminate your membership, which entitles you to use the site, the mobile app and the GNEX services under your terms of membership:
(a) with immediate effect by giving you notice of termination by email or post if:
(i) you commit any material or repeated breach of these terms and conditions and either that breach is not capable of remedy, or, if capable of remedy, you fail to remedy the breach within 14 days from the date we notify you of it;
(ii) insolvency or winding-up proceedings are instituted by or against you; a receiver, liquidator or administrator is appointed for you; a substantial part of your assets is the object of attachment, sequestration or other type of comparable proceeding; you are unable or admit in writing your inability to pay your debts as they fall due; or you take or suffer any similar action in any country in which you are resident; or
(iii) you make an arrangement or composition with your creditors; you commit an act of bankruptcy; a receiving order is made against you; or you take or suffer any similar action in any country in which you are resident; or
(b) without cause and at any time by giving you not less than 30 days' prior written notice of such termination either by email or by post.
34.3 If your membership is terminated:
(a) you will be unable to use the GNEX platform to enter into any new contracts of sale after termination;
(b) you must continue to honour all contracts of sale that you entered into prior to the date of termination;
(c) you will be unable to use the other GNEX services after termination (including, by way of example, any of the Trading Tools made available on the GNEX platform), save that we may (acting in our absolute discretion) decide to allow you to continue to access and use some or all of the Trading Tools to help you perform contracts of sale that you entered into prior to such termination. Where we do this you agree (i) to use those Trading Tools in accordance with these terms and conditions; and (ii) that we may terminate your access to and use of such tools at any time;
(d) you will continue to be liable for (and you must pay to us) any outstanding fees that are payable by you to us under and in accordance with these terms and conditions; and
(e) all rights and licences granted to you by us under these terms and conditions will automatically terminate on termination (including your right to use the GNEX-SATA in respect of 'off-platform' trades for the sale or purchase of almonds with persons that are not GNEX members).
34.4 Paragraphs 2.4, 16, 17, 18, 22.2, 22.3, 22.4, 22.5, 22.6, 23 to 26 (inclusive), 27.3, 30.3, 30.4, 30.5, 31, 32, 34.3, 34.4, 35 to 37 (inclusive) and 39 of these terms and conditions shall survive termination and shall continue to apply as shall any other provision which by its nature is intended to survive termination.
35. Disputes
We always try to give you the best service we can so if you have a grievance with us please let us know and we will try to sort it out quickly and amicably.
36. Our liability to you
36.1 Nothing in these terms and conditions shall exclude or limit our liability for:
(a) death or personal injury arising from our negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be limited or excluded by law.
36.2 Subject to paragraph 36.1, we will not be liable to you under any statute or in contract, tort (including negligence) or otherwise for:
(a) any (i) loss of profits, business revenue, business opportunity, technology, contracts, goodwill, data and/or anticipated savings; and/or (ii) indirect or consequential loss or damage, in each case which arises under or in connection with these terms and conditions, the site, the mobile app, the GNEX platform, your use of the GNEX-SATA and the other GNEX services; and/or
(b) any costs, damages, losses, expenses and/or liability that you suffer or incur under or in connection with any contract of sale.
36.3 Subject to paragraphs 36.1 and 7.5, our total aggregate liability to you under or in connection with these terms and conditions, the site, the mobile app, the GNEX platform, your use of the GNEX-SATA and the other GNEX services (whether such liability arises under any statute or in contract, tort (including negligence) or otherwise) shall be limited to the higher of £50,000 and the aggregate of the fees paid by you to us pursuant to these terms and conditions.
36.4 You agree not to sue or instigate any other legal action against us in respect of any breach or alleged breach of a contract of sale.
37. Changes to these terms and conditions
We may amend these terms and conditions at any time by posting the amendments on the site and notifying you by email of the amendments. Unless we inform you otherwise, an amendment will take effect seven days after the date that we post it on the site. Your use of the site and the mobile app after the date an amendment takes effect will be subject to these terms and conditions as amended by that amendment. If an amendment is not acceptable to you, you may terminate your agreement with us by notifying us by email or in writing prior to the date the amendment takes effect.
38. Marketing
By subscribing to the GNEX services, you agree that we may identify you as our customer on the site, the mobile app and on our client lists, press releases and other marketing material.
39. General
39.1 We will not be liable to you for any breach of our obligations under these terms and conditions to the extent that the breach is due to circumstances beyond our reasonable control.
39.2 If at any time any provision of these terms and conditions is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, that shall not affect or impair the legality, validity or enforceability in that jurisdiction of any other provision of these terms and conditions, or the legality, validity or enforceability under the law of any other jurisdiction of that or any other provision of these terms and conditions.
39.3 No delay or failure on the part of you or us in exercising or enforcing any right or remedy under these terms and conditions will be deemed to be a waiver of any such right or remedy, nor will that failure operate to bar the exercise or enforcement of such right or remedy at any future time.
39.4 You must not assign or dispose of any of your rights or obligations under these terms and conditions without our prior written consent.
39.5 Nothing in these terms and conditions and no action taken by you or us under these terms and conditions shall constitute, or be deemed to constitute, between you and us a partnership, association, joint venture or other cooperative entity or arrangement.
39.6 These terms and conditions, together with the details of your membership application and any section of the site referred to in these terms and conditions and your Membership Confirmation, contain the entire agreement and understanding between you and us in relation to their subject matter, and supersede all prior agreements, arrangements, statements and understandings in respect of the same.
39.7 All rights and remedies available to us for breach of these terms and conditions are cumulative and may be exercised concurrently or separately and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
39.8 These terms and conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including your use of the GNEX services, the site, the mobile app and any non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and, except as set out in paragraph 39.9, you and we hereby submit to the exclusive jurisdiction of the courts of England and Wales in respect of the same.
39.9 If you breach any of these terms and conditions then you acknowledge and agree that we may bring a claim against you for the breach in any jurisdiction in which you or any of your assets are located.
40. Keeping these terms of use
We do not separately file these terms and conditions or any contract between you and us for the use of the site, the mobile app or the GNEX services. All our contracts are concluded in English. You can always access the latest version of these terms and conditions at this page. Please make a durable copy of these terms and conditions by printing and/or saving a downloaded copy on your own device.
41. Contacting us
If you are in any doubt as to the accuracy and currency of any information posted on or downloaded from the site or mobile app, or if you require any further information or have any other query, please contact us at info@gnex.com.
Date of last revision: 7 March 2019