GraniteShares Platinum Trust S-1


Exhibit 10.3 


 





MARKETING
SERVICES AGREEMENT


 


THIS
AGREEMENT is made and entered into as of this ____day of _____ 2017 on behalf of GraniteShares Platium Trust (the “Trust”)
by and between GraniteShares, LLC, a Delaware limited liability company with its principal office and place of business at 30
Vesey Street 9th Floor, New York, New York 10007, as agent of the Trust (the “Client”) and Foreside Fund
Services, LLC, a Delaware limited liability company (“Foreside,” and together with the Client, each, a “Party,”
and collectively, the “Parties”). Capitalized terms used but not defined in this Agreement shall have the meaning
ascribed thereto in the Trust’s Prospectus included its Registration Statement on Form S-1 (Registration No. __________),
as it may be amended from time-to-time.


 


WHEREAS,
the establishment, operation and administration of the Trust will be governed in accordance with the terms of a certain Depository
Trust Agreement (the “Trust Agreement”); and


 


WHEREAS,
the Client, as sponsor of the Trust and on behalf of the Trust, has filed with Securities and Exchange Commission (the “Commission”
or “SEC”) a registration statement on Form S-1 (__________) (together
as applicable with amendments thereto), including as part thereof a prospectus (the “Prospectus”), under the Securities
Act of 1933 (the “1933 Act”), the forms of which have heretofore been delivered to the Marketing Agent; and


 


WHEREAS,
the Trust Agreement provides that the Client, as sponsor of the Trust, shall be responsible for the marketing expenses of the
Trust; and


 


WHEREAS,
the Trust and the Client wish to employ Foreside to provide certain services for the Trust and the Client on the terms and conditions
hereinafter set forth and additional services as may be agreed from time-to-time; and


 


WHEREAS,
Foreside is registered as a broker-dealer under the Securities Exchange Act of 1934 (the “1934 Act”), and is a member
of the Financial Industry Regulatory Authority, Inc. (“FINRA”).


 


NOW
THEREFORE, in consideration of the promises and mutual covenants herein contained, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:


 


1.            Services.


 


A.       Foreside
agrees to provide the services listed in Exhibit A.


 


B.       Pursuant
to a certain Securities Activities and Services Agreement, Foreside will hold the FINRA registration of certain employees of an
affiliate of the Client who will market the Trust.


  






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C.       Foreside
shall perform all duties set forth herein in compliance with all applicable laws and any exemptions thereof (including state and
federal securities laws) as well as the laws, rules, and/or regulations of the securities exchanges and all other governmental,
regulatory and self-regulatory authorities and organizations having jurisdiction over them.


 


D.       The
services furnished by Foreside hereunder are not to be deemed exclusive and Foreside shall be free to furnish similar services
to others so long as its services under this Agreement are not impaired thereby.


 


2.            Delivery
of Documents. Contemporaneous with the effective date of this Agreement, the Client shall deliver to Foreside copies of the
following documents:


 


			the
                                         then current Prospectus for the Trust;






			any
                                         relevant policies and procedures adopted by the Client or the Trust or its service providers
                                         that are applicable to the services provided by Foreside; and






			any
                                         other documents, materials or information that Foreside shall reasonably request to enable
                                         it to perform its duties pursuant to this Agreement.



 


The
Client shall thereafter deliver to Foreside as soon as is reasonably practical any and all amendments to the documents required
to be delivered under this Section.


 


3.            Representations,
Warranties and Covenants of the Client.


 


A.       The
Client hereby represents and warrants to Foreside, which representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:


 


		(i)	it
                                         is duly organized and in good standing under the laws of its jurisdiction of organization;



 


		(ii)	this
                                         Agreement has been duly authorized, executed and delivered by the Client and, when executed
                                         and delivered, will constitute a valid and legally binding obligation of the Client,
                                         enforceable in accordance with its terms, subject to bankruptcy, insolvency, reorganization,
                                         moratorium and other laws of general application affecting the rights and remedies of
                                         creditors and secured parties;



 


		(iii)	it
                                         is conducting its business in compliance in all material respects with all applicable
                                         laws and regulations, both state and federal, and has obtained all regulatory approvals
                                         necessary to carry on its business as now conducted;



 


		(iv)	the
                                         Prospectus has been prepared in conformity with the requirements of the 1933 Act; and



 


		(v)	it
                                         not required to be registered as an investment adviser under the Investment Advisers
                                         Act of 1940 (the “Advisers Act”).



 






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		(vi)	all
                                         necessary approvals, authorizations, consents or orders of or filings with any federal,
                                         state, local or foreign governmental or regulatory commission, board, body, authority
                                         or agency have been or will be obtained by the Trust in connection with the issuance
                                         and sale of the Shares, including registration of the Shares under the 1933 Act, and
                                         any necessary qualification under the securities or blue sky laws of the various jurisdictions
                                         in which the Shares are being offered.



 


B.       The
Client shall fully cooperate in the efforts of Foreside in the provision of the services. In addition, the Client shall keep Foreside
fully informed of its affairs as they relate to the provision by Foreside of the services under this Agreement and shall provide
to Foreside from time to time copies of all information that Foreside may reasonably request for use in connection with the provision
of the Services.


 


4.            Representations,
Warranties and Covenants of Foreside.


 


A.       Foreside
hereby represents and warrants to the Client, which representations and warranties shall be deemed to be continuing throughout
the term of this Agreement, that:


 


		(i)	it
                                         is duly organized and existing under the laws of the jurisdiction of its organization,
                                         with full power to carry on its business as now conducted, to enter into this Agreement
                                         and to perform its obligations hereunder;



 


		(ii)	this
                                         Agreement has been duly authorized, executed and delivered by Foreside and, when executed
                                         and delivered, will constitute a valid and legally binding obligation of Foreside, enforceable
                                         in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium
                                         and other laws of general application affecting the rights and remedies of creditors
                                         and secured parties;



 


		(iii)	it
                                         is conducting its business in compliance in all material respects with all applicable
                                         laws and regulations, both state and federal, and has obtained all regulatory approvals
                                         necessary to carry on its business as now conducted; and



 


		(iv)	it
                                         is registered as a broker-dealer under the 1934 Act and is a member in good standing
                                         of FINRA.



 


B.       In
connection with all matters relating to this Agreement, Foreside will comply with the applicable requirements of the 1933 Act,
the 1934 Act, the regulations of FINRA and any other applicable self-regulatory organization, and all other applicable federal
or state laws and regulations.


 


5.            Compensation.
As compensation for the services performed and the expenses assumed by Foreside under this Agreement, Foreside shall be entitled
to the fees and expenses set forth in Exhibit B.


 






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6.            Indemnification.


 


A.       The
Client shall indemnify, defend and hold Foreside, its affiliates and each of their respective members, managers, directors, officers,
employees, representatives and any person who controls or previously controlled Foreside within the meaning of Section 15 of the
1933 Act (collectively, the “Foreside Indemnitees”), free and harmless from and against any and all losses, claims,
demands, liabilities, damages and expenses (including the costs of investigating or defending any alleged losses, claims, demands,
liabilities, damages or expenses and any reasonable counsel fees incurred in connection therewith) (collectively, “Losses”)
that any Foreside Indemnitee may incur under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or any rule
or regulation thereunder, or under common law or otherwise, arising out of or relating to (i) the Client’s breach of any
of its obligations, representations, warranties or covenants contained in this Agreement; (ii) the Client’s failure to comply
with any applicable securities laws or regulations; or (iii) any claim that the Prospectus, sales
literature and advertising materials or other
information filed or made public by the Client (as from time to time amended) include or included an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not
misleading under the 1933 Act, or any other statute or the common law, or any rule of FINRA or of the SEC or any other jurisdiction
wherein Shares of the Trust are sold, provided, however, that the Client’s obligation to indemnify any of the Foreside Indemnitees
shall not be deemed to cover any Losses arising out of any untrue statement or alleged untrue statement or omission or alleged
omission made in the Prospectus or any such advertising materials or sales literature in reliance upon and in conformity with
information relating to Foreside and furnished to the Client or its counsel by Foreside in writing and acknowledging the purpose
of its use. In no event shall anything contained herein be so construed as to protect Foreside against any liability to the Client
to which Foreside would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in the performance
of its duties under this Agreement or by reason of its reckless disregard of its obligations under this Agreement.


 


The
Client’s agreement to indemnify the Foreside Indemnitees with respect to any action is expressly conditioned upon the Client
being notified of such action or claim of loss brought against any Foreside Indemnitee, within a reasonable time after the summons
or other first legal process giving information of the nature of the claim shall have been served upon such Foreside Indemnitee,
unless the failure to give notice does not prejudice the Client.


 


B.       The
Client shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense of any suit
brought to enforce any such Losses, but if the Client elects to assume the defense, such defense shall be conducted by counsel
chosen by the Client and approved by Foreside, which approval shall not be unreasonably withheld. In the event the Client elects
to assume the defense of any such suit and retain such counsel, the Foreside Indemnitee(s) in such suit shall bear the fees and
expenses of any additional counsel retained by them. If the Client does not elect to assume the defense of any such suit, or in
case Foreside does not, in the exercise of reasonable judgment, approve of counsel chosen by the Client or, if under prevailing
law or legal codes of ethics, the same counsel cannot effectively represent the interests of both the Client and the Foreside
Indemnitee(s), the Client will reimburse the Foreside Indemnitee(s) in such suit, for the fees and expenses of any counsel retained
by Foreside and them.


 






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C.       Foreside
shall indemnify, defend and hold the Client, its affiliates, and each of their respective directors, officers, employees, representatives,
and any person who controls or previously controlled the Client within the meaning of Section 15 of the 1933 Act (collectively,
the “Client Indemnitees”), free and harmless from and against any and all Losses that any Client Indemnitee may incur
under the 1933 Act, the 1934 Act, any other statute (including Blue Sky laws) or any rule or regulation thereunder, or under common
law or otherwise, arising out of or based upon (i) Foreside’s breach of any of its obligations, representations, warranties
or covenants contained in this Agreement; (ii) Foreside’s failure to comply with any applicable securities laws or regulations
or applicable rules and regulations of any self-regulatory organization, including, without limitation, FINRA; or (iii) any claim
that the Prospectus, sales
literature and advertising materials or other
information filed or made public by the Client (as from time to time amended) include or included an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements not misleading,
insofar as such statement or omission was made in reliance upon, and in conformity with, information furnished to the Client by
Foreside in writing. In no event shall anything contained herein be so construed as to protect the Client against any liability
to Foreside to which the Client would otherwise be subject by reason of willful misfeasance, bad faith, or gross negligence in
the performance of its duties under this Agreement or by reason of its reckless disregard of its obligations under this Agreement.


 


Foreside’s
agreement to indemnify the Client Indemnitees is expressly conditioned upon Foreside being notified of any action or claim of
loss brought against a Client Indemnitee, such notification to be given by letter addressed to Foreside’s Legal Department,
within a reasonable time after the summons or other first legal process giving information of the nature of the claim shall have
been served upon the Client Indemnitee, unless the failure to give notice does not prejudice Foreside.


 


D.       Foreside
shall be entitled to participate at its own expense in the defense or, if it so elects, to assume the defense of any suit brought
to enforce any such Losses, but if Foreside elects to assume the defense, such defense shall be conducted by counsel chosen by
Foreside and approved by the Client Indemnitee, which approval shall not be unreasonably withheld. In the event Foreside elects
to assume the defense of any such suit and retain such counsel, the Client Indemnitee(s) in such suit shall bear the fees and
expenses of any additional counsel retained by them. If Foreside does not elect to assume the defense of any such suit, or in
case the Client does not, in the exercise of reasonable judgment, approve of counsel chosen by Foreside or, if under prevailing
law or legal codes of ethics, the same counsel cannot effectively represent the interests of both Foreside and the Client Indemnitee(s),
Foreside will reimburse the Client Indemnitee(s) in such suit, for the fees and expenses of any counsel retained by the Client
and them.


 


E.       No
person shall be obligated to provide indemnification under this Section 6 if such indemnification would be impermissible under
the 1933 Act, the 1934 Act or the rules of the FINRA; provided, however, in such event indemnification shall be provided under
this Section 6 to the maximum extent so permissible.


 






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7.            Limitations
on Damages. Neither Party shall be liable for any consequential, special or indirect losses or damages suffered by the other
Party, whether or not the likelihood of such losses or damages was known by the Party.


 


8.            Force
Majeure. Neither Party shall be liable for losses, delays, failure, errors, interruption or loss of data occurring directly
or indirectly by reason of circumstances beyond its reasonable control, including, without limitation, Acts of Nature (including
fire, flood, earthquake, storm, hurricane or other natural disaster); action or inaction of civil or military authority; acts
of foreign enemies; war; terrorism; riot; insurrection; sabotage; epidemics; labor disputes; civil commotion; or interruption,
loss or malfunction of utilities, transportation, computer or communications capabilities that are beyond the control of the Party,
and the other Party shall have no right to terminate this Agreement in such circumstances.


 


9.            Duration
and Termination.


 


A.       This
Agreement shall become effective as of the date first set forth above. Unless sooner terminated as provided herein, this Agreement
shall continue in effect for two years from the date hereof. Thereafter, if not terminated, this Agreement shall continue automatically
in effect for successive one-year periods.


 


B.       Notwithstanding
the foregoing, this Agreement may be terminated, without the payment of any penalty, upon no less than 60 days’ written
notice, by either the Client or by Foreside.


 


10.          Privacy. In accordance with Regulation S-P, Foreside will not disclose any non-public
personal information, as defined in Regulation S-P, received from the Client or the Trust regarding any Trust shareholder;
provided, however, that Foreside may disclose such information to any party as necessary in the ordinary course of business
to carry out the purposes for which such information was disclosed to Foreside. Foreside shall have in place and maintain
physical, electronic and procedural safeguards reasonably designed to protect the security, confidentiality and integrity of,
and to prevent unauthorized access to or use of, records and information relating to consumers and customers of the
Trust.


 


The
Client represents to Foreside that it has adopted a Statement of its privacy policies and practices as required by Securities
and Exchange Commission Regulation S-P and agrees to provide to Foreside a copy of that statement annually. Foreside agrees to
use reasonable precautions to protect, and prevent the unintentional disclosure of, such non-public personal information.


 






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11.         Confidentiality.
During the term of this Agreement, Foreside and the Client may have access to confidential information relating to such matters
as either party’s business, trade secrets, systems, procedures, manuals, products, contracts, personnel, and clients. As
used in this Agreement, “Confidential Information” means information belonging to Foreside or the Client which is
of value to such party and the disclosure of which could result in a competitive or other disadvantage to either party, including,
without limitation, financial information, business practices and policies, know-how, trade secrets, market or sales information
or plans, customer lists, business plans, and all provisions of this Agreement. Confidential Information does not include: (i)
information that was known to the receiving Party before receipt thereof from or on behalf of the disclosing party (“Disclosing
Party”); (ii) information that is disclosed to the receiving party (“Receiving Party”) by a third person who
has a right to make such disclosure without any obligation of confidentiality to the Party seeking to enforce its rights under
this Section; (iii) information that is or becomes generally known in the trade without violation of this Agreement by the Receiving
Party; or (iv) information that is independently developed by the Receiving Party or its employees or affiliates without reference
to the Disclosing Party’s information.


 


Each
party will protect the other’s Confidential Information with at least the same degree of care it uses with respect to its
own Confidential Information, and will not use the other party’s Confidential Information other than in connection with
its obligations hereunder. Notwithstanding the foregoing, a party may disclose the other’s Confidential Information if (i)
required by law, regulation or legal process or if requested by any applicable governmental agency or self-regulatory organization;
(ii) it is advised by counsel that it may incur liability for failure to make such disclosure; (iii) requested to by the other
Party; provided that in the event of (i) or (ii) the Disclosing Party shall give the other Party reasonable prior notice of such
disclosure to the extent reasonably practicable and cooperate with the other Party (at such other Party’s expense) in any
efforts to prevent such disclosure.


 


12.          Notices.
Any notice required or permitted to be given by any Party to the others shall be in writing and shall be deemed to have been
given on the date delivered personally or by courier service or 3 days after sent by registered or certified mail, postage prepaid,
return receipt requested or on the date sent and confirmed received by facsimile transmission to the other Party’s address
as set forth below:


 


Notices
to Foreside shall be sent to:


 


Foreside
Fund Services, LLC





Attn:
Legal Department





Three
Canal Plaza, Suite 100





Portland,
ME 04101





(207)
553-7110





Fax:
(207) 553-7151


 






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Notices
to the Client shall be sent to:


 


GraniteShares,
LLC





Attn:
Benoit Autier





30
Vesey Street, 9th Floor





New
York, NY 10007





Phone:
917-338-0565


 





Email:
benoit.autier@graniteshares.com


 


13.          Modifications. The
terms of this Agreement shall not be waived, altered, modified, amended or supplemented in any manner whatsoever except by a written
instrument signed by Foreside and the Client.


 


14.    
     Governing Law. This Agreement shall be construed in accordance with the laws of the State
of Delaware, without regard to the conflicts of law principles thereof.


 


15.    
     Assignment. This Agreement may not be assigned by either Party without the prior written
consent of the other Party. This Agreement shall be binding upon and inure to the benefit of the Parties’
representatives, successors, heirs, and permitted assigns, as applicable. A change in control shall not be construed to be
an assignment.


 


16. 
        Entire Agreement. This Agreement constitutes the entire agreement
between the Parties hereto and supersedes all prior communications, understandings and agreements relating to the subject
matter hereof, whether oral or written.


 


17.          Survival. The provisions of Sections 6, 7, 10, and 11 of this Agreement shall survive any
termination of this Agreement.


 


18.          Miscellaneous.
The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions
hereof or otherwise affect their construction or effect. Any provision of this Agreement which may be determined by competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability
in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. This Agreement shall
be binding upon and inure to the benefit of the parties hereto and their respective successors.


 


19.          Counterparts.
This Agreement may be executed by the Parties hereto in any number of counterparts, and all of the counterparts taken together
shall be deemed to constitute one and the same document.


 






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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by a duly authorized officer on one or more counterparts
as of the date first above written.


 





	 	FORESIDE
    FUND SERVICES, LLC	 
	 	 	 
	 	By:	 	 
	 	 	Mark
    Fairbanks	 
	 	 	Vice
    President	 
	 	 	 
	 	GRANITESHARES,
    LLC	 
	 	 	 
	 	By:	 	 




 






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EXHIBIT
A


 


Services:


 


		1.	Review
                                         all proposed advertising materials and sales literature for compliance with applicable
                                         laws and regulations; file with appropriate regulators those advertising materials and
                                         sales literature as required; furnish to the Client any comments provided by regulators
                                         with respect to such materials and use its best efforts to obtain approval of such advertising
                                         materials by such regulators and sales literature when required.



 


		2.	Prepare
                                         and provide compliance policies and procedures for complying with applicable laws, rules
                                         and regulations under the 1933 Act, including, without limitation, Rules 134, 135 and
                                         433 under the Securities Act, and the rules and regulations of any applicable self-regulatory
                                         organizations, including the Financial Regulatory Authority (“FINRA”).



 


		3.	Consult
                                         with Trust’s legal counsel when requested in connection with the services provided
                                         pursuant to the Agreement.



 


		4.	Prepare,
                                         maintain and reproduce when requested all applicable books and records related to the
                                         services provided pursuant to the Agreement. 



 






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EXHIBIT
B


 


Compensation


 


MARKETING
SERVICES FEES


 


	One-time
    Fee 	Rate
	Organizational
    Setup Fee	$5,000
    (WAIVED)
	Recurring
    Marketing Services Fees	Rate
	Asset
    Base Fee, based on total assets in each Fund/Pool calculated and billed monthly (subject to an annual minimum fee of $10,000
    per Fund).	0.50
                                         basis points for assets up to $1 billion

        

        0.35
        basis points for assets in excess of $1 billion

        



 


OUT-OF-POCKET
EXPENSES


 


Reasonable
out-of-pocket expenses incurred by the Foreside in connection with the services provided pursuant to the Marketing Services Agreement.
Such expenses may include, without limitation, regulatory filing fees; sales literature regulatory review fees; communications;
postage and delivery service fees; bank fees; reproduction and record retention fees; travel, lodging and meals.


 


Notes:


 


			Fees
                                         will be calculated and payable monthly.






			Fees
                                         will start to accrue once a Fund is listed on a National Exchange and, in case a Fund
                                         is terminated, until the day before its listing is suspended.



 






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