Terms and Conditions

Last updated: 28 January 2026

This Platform Agreement including the attached schedules which are hereby incorporated (collectively this "Agreement") is entered into by and between Vertex Capital Bank Limited dba Bultra ("Vertex") and the entity identified on the Order Form ("Subscriber"). By executing or otherwise agreeing to an Order Form that references this Agreement, the Subscriber agrees to the terms of this Agreement effective as of the date the Subscriber executes or otherwise agrees to the Order Form (the "Effective Date"). If the Subscriber is entering into this Agreement on behalf of a company or other legal entity, the Subscriber represents that it has authority to bind such entity to this Agreement. Vertex and the Subscriber may each be referred to individually as a "Party" and collectively as the "Parties."

WHEREAS Vertex has developed, operates and maintains the Platform (as defined below); and

WHEREAS the Subscriber desires to access the Platform and use the Services (as defined below) on behalf of itself and its Authorized Customers (as defined below) and their respective End Users (as defined below).

NOW THEREFORE, for consideration of these promises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

Recitals and Definitions

The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

  • Accounts means as applicable Subscriber, Authorized Customers and End User accounts maintained on the Platform's Omnibus Ledger and held within the Master Accounts.
  • Affiliate means any Person that directly or indirectly Controls, is Controlled by, or is under common Control with a specified Person.
  • API means application program interface.
  • Applicable Law means any applicable laws, statutes, regulations, ordinances, rules, codes, directives, orders, judgments, and other requirements issued, including without limitation all Privacy Laws.
  • Assets Under Custody (AUC) means any virtual assets under the custody of Custodians under the Custodian Agreements.
  • Authorized Customers means Subscriber's customers who have agreed to the Customer Addendum and have been approved by Vertex.
  • Authorized Users means Subscriber's employees and Contractors whom the Subscriber authorizes to access and use the Platform; provided, however, that any Contractors' access to and use of the Platform will be limited to their provision of services to the Subscriber.
  • Confidential Information means each Party's business and technical information in any form including without limitation Intellectual Property, End User Data, business and marketing plans, strategies, sales, product and financial data and projections, processes, techniques, trade secrets, know how, inventions, processes (business, technical or other), designs, algorithms, source code, customer lists and the terms of this Agreement.

    Confidential Information does not include information or data which is:

    • (i) known to the Party receiving the Confidential Information (the "Receiving Party") prior to its receipt from the other Party (the "Disclosing Party") without limitation or obligation of confidentiality under another agreement;
    • (ii) independently developed by the Receiving Party without use of any Confidential Information;
    • (iii) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; or
    • (iv) received from a third party with a legal or contractual right to disclose such information or data.

    The exclusions set out above do not apply with respect to any End User Data, which shall always be and remain Confidential Information of Vertex subject to the restrictions set forth herein.

  • Contractor means any third party that is under contract to provide services to the Subscriber.
  • Control or "controls," and the formatives "controlling" and "controlled," mean the possession directly or indirectly of twenty five percent (25%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract or otherwise.
  • Custodian Agreements means the agreements between the Subscriber and/or an Authorized Customer on the one hand and Custodians on the other hand pursuant to which Custodians provide their custody services to the Subscriber and/or an Authorized Customer.
  • Custodians mean the parties that provide custody services to the Subscriber and/or an Authorized Customer with respect to virtual assets pursuant to Custodian Agreements. For the avoidance of doubt, such custody services may be performed by one (1) or more parties.
  • Custody Services means the services provided by Custodians to the Subscriber and/or Authorized Customers pursuant to the Custodian Agreements.
  • Customer Addendum means the authorized customer addendum available here.
  • Documentation means all documentation (whether in hard copy, electronic or digital form) including all technical documentation, manuals, descriptions, instructions, drawings, file layouts, flowcharts, screen layouts, specifications and other written materials designed to provide guidance and instruction regarding the operation, maintenance, and use of the Platform.
  • End User Data means any information about End Users provided by Subscriber or Authorized Customers to Vertex, or to which Vertex or Rail otherwise has access in connection with the Platform and Services.
  • End Users means Authorized Customers and their customers who have provided KYC data via the Front End and subsequently (i) successfully complete Vertex's and the applicable Custodians' compliance checks as required; and (ii) successfully open an Account on the Platform.
  • FBO Account means a For Benefit Of Account which is an umbrella custodial account that pools funds for the benefit of the Subscriber, an Authorized Customer, or End Users. Neither the Subscriber nor an Authorized Customer shall have any legal or beneficial ownership interest in the FBO Account (or funds or assets therein) that are for the benefit of End Users.
  • Fees means the Subscription Fees and the Professional Services Fees collectively.
  • Front End means the front end user interface hosted, managed, and/or supported by the Subscriber or an Authorized Customer that enables End Users, among other things, to enter KYC data to establish an Account.
  • Intellectual Property Rights means all intellectual and industrial property rights whether now existing or existing in the future, including:
    • (i) all patent rights including any rights in pending patent applications and related rights;
    • (ii) all copyrights and related rights in works of authorship including registrations and applications;
    • (iii) all trademarks, service marks, trade dress and other proprietary designations including registrations and applications;
    • (iv) all rights to proprietary know how, trade secrets and Confidential Information; and
    • (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.
  • KYC means procedures determined by Vertex for identifying and verifying customers.
  • Malicious Code means any computer virus, Trojan horse, worm, time bomb or other similar code or hardware component designed to disable, damage, disrupt, permit unauthorized access to, erase, destroy, or modify any software, hardware, network or technology.
  • Master Accounts mean the Subscriber, Authorized Customer and End User master virtual asset FBO Accounts custodied with Custodians for the benefit of the Subscriber, Authorized Customer and its End Users. For clarity, Master Accounts do not include cash FBO Accounts that are not custodied by Custodians.
  • Order Form means the order form that the Subscriber and Vertex have agreed to, whether via Vertex's online portal, a mutually executed order form or otherwise, that references this Agreement. Each Order Form forms part of this Agreement and is subject to its terms and conditions.
  • Person means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency, political subdivision or other entity.
  • Personal Information means any information defined as "personal information," "personal data," "non-public personal information," or other similar terms under any Privacy Law.
  • Platform means Vertex's API enabled proprietary technology and data processing platform which enables institutions, in conjunction with services provided by Custodians, to provide crypto payments and financial services products to their customers, the functionality of which is described in more detail in the documentation accessible via click link.
  • Privacy Laws means applicable national, federal and state laws or regulations relating to the collection, use, processing and protection of Personal Information in the jurisdictions in which the Subscriber does business.
  • Privacy Policy means Vertex's then current privacy policy available at Privacy Policy, as updated from time to time.
  • Processing means any operation performed on Personal Information, whether automated, including collection, recording, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure, alignment, combination, blocking, erasure or destruction.
  • Professional Services means development, migration, integration, testing, conversion, consulting or other services and deliverables related to the SaaS Services but not otherwise provided as part of the SaaS Services, as agreed by the Parties in one or more Statement(s) of Work.
  • Prohibited User means any person or entity that (i) is the subject of economic or trade sanctions administered or enforced by any governmental authority (including persons on the U.S. Treasury Department's SDN List, U.S. Department of Commerce Denied Persons List or Entity List, EU Consolidated List, or U.K. Consolidated List); (ii) is located, resident or organized in any jurisdiction subject to comprehensive sanctions or designated as "terrorist supporting"; or (iii) is owned or controlled by persons in (i)–(ii).
  • Professional Services Fees means the fees due to Vertex for the Professional Services as set forth in the applicable Statement of Work.
  • Rail means Layer2 Financial Inc., dba Rail and its Affiliates.
  • Rail Platform Agreement means the platform agreement published by Rail (Layer2 Financial Inc., dba Rail) and accessible at Platform Agreement, together with any schedules, addenda, or amendments thereto, as may be modified by Rail from time to time.
  • Rail Privacy Policy means Rail's then current privacy policy available at Privacy Policy, as updated from time to time.
  • SaaS Services means Vertex's provision of access to and usage of the Platform as set forth herein and all related hosting, maintenance and Support Services (as defined below).
  • Services means the SaaS Services and the Professional Services collectively.
  • Statement of Work means a written statement of work entered into by the Parties as further described in 'Professional Services' Section 1 below.
  • Subscriber Personal Information means the Personal Information of or relating to the Subscriber and its current, former and prospective employees, Authorized Customers, End Users and Contractors (other than Vertex or Custodians).
  • Subscription Fees means the fees due to Vertex for the SaaS Services as set forth in the Order Form.
  • Updates means any error correction, bug fix, patch, enhancement, update, upgrade, new version, release, revision or other modification to the Platform provided or made available by Vertex pursuant to this Agreement.

Subscription Terms

1. Subscription

Subject to the terms and conditions of this Agreement Vertex hereby grants Subscriber during the Term (as defined below) a limited non-exclusive non-transferable (except as permitted under 'General Provisions' Section 3) right and license to:

  • authorize (A) Authorized Customers and their End Users to access and use the Platform via the Front End(s) to among other things buy sell transfer and hold Vertex approved virtual assets open or close Accounts accessible through the Platform and other services provided by or on behalf of Vertex through the Platform from time to time subject to configurations selected by the Subscriber and agreed to by Vertex and (B) an Authorized Customer to access and use the Platform via Subscriber's Front End to service such Authorized Customer and its End Users' Accounts and Master Accounts and to perform support for its End Users; and
  • authorize its Authorized Users to access and use the Platform via a dashboard in object code only for Subscriber and Authorized Customers (in conjunction with services provided by Custodians) to service Accounts and Master Accounts and to perform support to Authorized Customers and End Users. Subscriber is responsible for any breach of this Agreement and any acts or omissions by its Authorized Users End Users and any other Person who accesses and uses the Platform using any of Subscriber's or its Authorized Users' access credentials.

2. Provision of Services

Subject to the terms and conditions of this Agreement Vertex shall maintain and support the Platform. Vertex agrees to use commercially reasonable efforts to provide the Support Services. Subscriber's sole and exclusive remedy for any failure of Vertex to meet its obligations set forth in this Agreement shall be to exercise any termination rights it may have under 'Term and Termination' Section 3.2 below. Subscriber Authorized Users Authorized Customers and End Users shall be responsible for obtaining Internet connections and other third-party hardware software and services necessary to access the Platform. From time-to-time Vertex may develop new products services and premium features that have an additional cost. These capabilities may be presented to Subscriber as options available for inclusion in an addendum to this Agreement. In the event Subscriber desires to have Vertex provide integration custom development or other Professional Services outside the scope of this Section such professional services will be governed by 'Professional Services' Section 1.

3. Access to Documentation

Vertex shall provide Subscriber access to the Documentation as may be updated from time to time in order to reflect any Updates or requirements related to the Platform. Subscriber shall comply with Documentation and may print copies of use and permit its Authorized Users to use the Documentation solely in connection with the use of the Platform.

4. Restrictions on Use

Except to the extent expressly permitted in this Agreement Subscriber shall not (and shall not authorize or permit any Authorized Customer End User or other third party to):

  • (i) reverse engineer, decompile, disassemble or otherwise attempt to discern the source code algorithms file formats or interface protocols of the Platform or of any files contained therein;
  • (ii) copy modify adapt or translate the Platform or otherwise make any use resell distribute or sublicense the Platform;
  • (iii) sublicense, resell or otherwise allow the use of the Platform for the benefit of any unauthorized third party (e.g. as a service bureau) other than to Authorized Customers and End Users to access and use the Platform as permitted hereunder as part of an integrated offering with Subscriber's software or services;
  • (iv) remove or modify any proprietary markings or restrictive legends placed on the Platform or the Documentation;
  • (v) use the Platform in violation of any Applicable Law; or
  • (vi) introduce into the Platform any Malicious Code. Subscriber agrees not to distribute or make available the Platform on a stand-alone basis. Subscriber shall ensure that no Authorized Customer or End User is a Prohibited User.

5. Title

As between Vertex and Subscriber:

  • (i) Vertex retains all right title and interest including without limitation all Intellectual Property Rights in and to the Platform the Documentation and any other materials provided by Vertex hereunder (collectively the "Vertex Materials") and Subscriber shall have no rights with respect to the same other than those license rights expressly granted under this Agreement; and
  • (ii) The Subscriber retains all right title and interest including without limitation all Intellectual Property Rights in and to the Front End and the End User Data and Vertex shall have no rights with respect to the same other than those license rights expressly granted under this Agreement. Subscriber warrants and represents that it has obtained all necessary rights licenses and permissions to provide Vertex with the End User Data and any other data that Subscriber or Authorized Customers provide under this Agreement for use by Vertex and/or its service providers for processing and use as permitted in this Agreement and the Privacy Policy and that the provision of such data by Subscriber or Authorized Customers for such purposes does not violate any Applicable Law any of Subscriber's privacy policies or any contract that Subscriber is a party to.

6. End User Agreements

Subscriber shall ensure and shall cause each Authorized Customer to ensure that each End User acknowledge and accepts an agreement (including online click-through terms of use) that:

  • (i) are at least protective of the Vertex Materials as those set forth in this Agreement;
  • (ii) expressly name Vertex and Rail as intended third-party beneficiaries with the right to enforce protective and intellectual property provisions directly against the applicable End User;
  • (iii) clearly and conspicuously disclose that Vertex and Rail (and their respective service providers) will Process End User Data and reference the Privacy Policy and the Rail Privacy Policy; and
  • (iv) includes any other end-user disclosures reasonably required by Vertex or Rail to ensure the Platform is provided in compliance with Applicable Law. Subscriber shall promptly implement any modifications to such End User agreements as reasonably requested by Vertex or Rail.

7. AML / KYC / Sanctions

Subscriber shall provide, and shall ensure Authorized Customers and End Users provide, all information and documents reasonably requested by Vertex, Rail and any applicable custodians for onboarding and ongoing monitoring, including KYC information, beneficial ownership, transaction information and other information required by Applicable Law. Subscriber shall implement and maintain policies and procedures reasonably designed to comply with anti money laundering, counter terrorist financing and sanctions screening obligations under Applicable Law; ensure that neither Subscriber, any Authorized Customer nor any End User is a Prohibited User; and promptly notify Vertex upon any sanctions match or violation.

8. Nested Payments Prohibition

Subscriber covenants that neither it nor any Authorized Customer or End User will facilitate "Nested Payments" in connection with any services provided via the Platform. "Nested Payments" means: (a) any payment or instruction (i) that relates to more than one underlying transaction or party; (ii) where, for the receipt of funds, the ultimate beneficiary is not the Subscriber or applicable End User; or (iii) where, for the sending of funds, the funds do not belong exclusively to the Subscriber or applicable End User; or (b) any event in which Subscriber or an End User provides access to Platform services to another financial institution (including non-bank financial institutions), unless expressly approved in writing by Vertex following Rail's prior written approval.

Subscriber shall ensure that any transaction settled or processed is conducted solely for the benefit of and by Subscriber or End Users onboarded to the Platform through Vertex and approved by Rail, as applicable.

Subscriber shall not offer any Rail services to, or use Rail services in connection with providing its services to, any financial institution (including any non bank financial institution), except as approved in writing by Rail.

9. Custodian Agreements

Subscriber shall be required to enter into Custodian Agreements directly with Custodians. During the Term Subscriber shall ensure that the Custodian Agreements remain in full force and effect. In the event that the Custodian Agreements that Subscriber is a party to expire or are terminated during the Term the Parties shall confer in good faith regarding whether to continue this Agreement on its then-current terms modify this Agreement or terminate this Agreement. Any such decision shall be made by the Parties mutually and in good faith. Subscriber acknowledges and agrees that:

  • (i) Vertex is not the provider of any Custody Services nor is Vertex responsible for the any act or omission of any Custodian or for anything relating to the Custody Services; and
  • (ii) any banking money transmitter and/or financial services provided to Subscriber via the Platform for which Vertex does not possess the required registration license charter or other necessary state or federal regulatory authority shall be provided by third parties (such as an affiliate of Vertex) pursuant to either a separate agreement between Subscriber and such third party or an addendum to this Agreement in either case as facilitated by the Platform and Services provided by Vertex under this Agreement.

THE CUSTODY SERVICES ARE PROVIDED BY THE CUSTODIANS AND NOT BY VERTEX AND VERTEX DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED AND SHALL NOT HAVE ANY LIABILITY WITH RESPECT TO THE CUSTODY SERVICES.

10. Authorized Customers; Customer Addendums

Subscriber shall require each Authorized Customer to execute a Customer Addendum in a form approved by Vertex (and acceptable to Rail) that (i) incorporates the End User Agreement obligations above; (ii) includes Vertex's and Rail's third party beneficiary status and enforcement rights; (iii) authorizes Vertex and Rail to Process End User Data and conduct diligence; and (iv) permits Vertex or Rail directed suspension/termination.

11. Modifications; No Contingency for Future Commitments

Vertex may in its sole discretion modify the Platform from time to time by adding deleting or modifying features to improve the user experience provided however that during the Term such additions deletions or modifications to features:

  • (i) will not materially decrease the overall functionality of the Platform; and
  • (ii) will be described by Vertex through updates to the Documentation. Subscriber acknowledges and agrees that such modifications may require Subscriber or Authorized Customers to adjust its integration to properly use the Platform. Unless otherwise expressly agreed by the Parties in writing Subscriber agrees that payment of the Fees under this Agreement is not contingent on the delivery of any future Platform functionalities or features or any other future commitments except as expressly set forth in this Agreement.

12. Cooperation; Records

Subscriber acknowledges that Vertex's ability to implement and provide the Services is dependent on Vertex having access to (and being able to spend time with) employees of Subscriber and designated third parties and also dependent on Vertex being provided with (and continuing to receive) complete accurate up-to-date and timely data information and other materials as reasonably requested by Vertex in connection with the initial diligence and ongoing monitoring of Subscriber Authorized Customers and its End Users. Subscriber agrees to provide and shall cause Authorized Customers to provide such data information and other materials to Vertex Custodians and any governmental or regulatory authority as reasonably requested by Vertex and shall cause any designated third parties to cooperate with Vertex for Vertex to implement and provide the Services on the schedules adopted by the Parties. In addition, Subscriber shall and shall cause Authorized Customers to actively and in good faith participate in Vertex's compliance and risk management activities in cooperation with Vertex and Custodians. Without limiting the generality of the foregoing:

  • (i) Subscriber hereby agrees and consents and shall cause Authorized Customers to agree and consent to Vertex obtaining credit reports and other information about Subscriber Authorized Customers and its and their business; and
  • (ii) Subscriber shall provide access to the necessary information to perform necessary ledger reconciliation or recordkeeping in connection with its use of the Platform including access to data from processors and networks that allow the derivation of accounts based on information accessible to Vertex in an automated fashion. Any credit report obtained by Vertex hereunder may be used for any lawful purpose.

13. Unclaimed Property

Subscriber shall develop a protocol to share information to enable Vertex to comply with applicable state unclaimed property laws (if any). Subscriber will reimburse Vertex for the third-party costs of compliance with applicable state unclaimed property laws (if any) and Vertex shall implement Subscriber's written instructions regarding the reporting and delivery of unclaimed End User funds to the appropriate state unclaimed property administrator. Subscriber shall be solely liable for any costs and fines related to any challenge by any governmental authority with respect to escheat of unclaimed property laws regardless of whether such cost is incurred by or such fines are assessed to Vertex or Subscriber. Subscriber shall be liable to Vertex for any amounts claimed by states under unclaimed property laws that represent breakage that has been previously paid to Subscriber by Vertex.

14. Subscriber Responsibilities

As between Vertex and Subscriber, the Subscriber agrees that it shall be responsible for and liable to Vertex for all reasonable expenses incurred by Vertex in connection with (a) over-limit processing (b) End User fraud (c) under-floor-limit processing or (d) Vertex efforts at fraud remediation or unauthorized transaction recovery in each case to the extent related to the Subscriber's an Authorized Customer's or an End User's use of the Platform and except for those costs and expenses incurred as a result of Vertex's gross negligence or wilful misconduct. Subscriber shall use commercially reasonable efforts to assist with the location and prosecution of the perpetrator of any such unauthorized activity or fraud and shall bear its own costs and expenses in connection therewith. To the extent Subscriber remits payment to Vertex in connection with an incident subject to this Section 12 and all or a portion of such funds are returned to Vertex because of a resolution of such incident Vertex shall promptly remit the amount of such funds it receives from resolution back to Subscriber. Any amount owing by Subscriber following communication of a reasonably detailed statement with respect thereto shall be set off against the amount otherwise payable by Vertex herein.

Subscriber acknowledges and agrees that it is responsible and liable for all instructions it provides to Vertex whether via the Platform or otherwise and that Vertex may rely on such instructions. Subscriber is solely responsible for ensuring such instructions are accurate and complete. Vertex is not responsible for any errors in any such instructions from Subscriber including any Subscriber errors related to transaction instructions.

Subscriber is responsible for ensuring that each of the following is appropriate and sufficient for its implementation of the Platform on the Front End and such Front End complies with Applicable Law and Vertex's requirements (which may be provided to Subscriber from time to time). Subscriber will provide each item to Vertex for Vertex's prior approval: (i) Front End interfaces (ii) diagram of the proposed operational funds flow related to Subscriber's implementation of the Platform (iii) End User documentation created or provided by Subscriber including any amendments or modifications thereto and (iv) the privacy policy and terms of services for the Front End that relate to or are applicable to the Services. Subscriber agrees that the look and feel of the Front End will be designed so that the End User can readily distinguish when they are interacting with using or viewing their Account. Subscriber agrees to provide Vertex with at least sixty (60) days' prior written notice of any material changes to the Front End that affect or modify the presentation of any previously communicated presentation or display of the Services to End Users. Subscriber agrees that Vertex has the right to reject in its sole discretion any proposed changes to the Front End. Subscriber agrees that Vertex has the right to audit the Front End for compliance with this Agreement and Subscriber shall provide Vertex with a test account to access the Front End for the purposes of such audit. Subscriber agrees to promptly correct any deviations from this Agreement identified by Vertex during such audit. Subscriber shall be responsible for all reasonable and documented out-of-pocket expenses related to the review of any such materials.

15. Acknowledgement

Subscriber acknowledges that the Accounts and Master Accounts shall be subject to suspension (blocking) and cancellation at any time by Vertex subject to Applicable Law. Vertex acknowledges that Subscribers maintain independent customer relationships with Authorized Customers and End Users and Subscriber may have independent reasons to suggest suspension or cancellation of an Authorized Customer or End User Account. As such where Subscriber (a) reasonably believes in good faith that an Authorized Customer or End User may be using its Account for fraudulent illegal purposes or other suspicious activity; (b) otherwise intends to suspend or terminate its independent customer relationship with such Authorized Customer or End User due to actual or suspected fraud or illegal purposes or for violation of any agreement between Subscriber and such Authorized Customer or End User it shall promptly notify Vertex in writing so that such Account be suspended or terminated as applicable.

16. End User Disputes and Support

As between the Parties Subscriber agrees that it is solely responsible for resolving disputes with and providing support to Authorized Customers and End Users. Subscriber agrees to handle support requests in accordance with Vertex's written instructions as may be updated from time to time and Applicable Law. Without limiting the foregoing Subscriber is responsible for (i) maintaining End User support channels which must be approved by Vertex (such approval not to be unreasonably withheld or delayed); (ii) authenticating the identity of End Users; (iii) investigating and resolving End User complaints and support requests; and (iv) promptly communicating to End Users the resolution of complaints and support requests within the time period required by Applicable Law. Notwithstanding the foregoing for complaints and support requests relating to the Platform that (y) relate to regulatory matters (including matters governed by the Electronic Funds Transfer Act, 2013 of the Commonwealth of Dominica, including but not limited to unauthorized electronic fund transfers, incorrect or omitted electronic transfers, documentation requests, liability questions, system errors, or any issue requiring error resolution procedures under the Applicable Law) or (z) cannot be independently resolved by Subscriber after exhausting commercially reasonable efforts Subscriber will escalate such complaints or requests to Vertex and communicate the resolution to the End User in accordance with Vertex's instructions and promptly take steps to remediate any underlying issue in accordance with Vertex's instructions. Subscriber shall ensure all transaction disputes and complaints are resolved in full compliance with the Electronic Funds Transfer Act, 2013 of the Commonwealth of Dominica and in accordance with Applicable Law.

17. Investigations

Subscriber will notify Vertex if it becomes aware of any investigation inquiry proceeding claim or action commenced by any governmental authority that relates in any way to the Platform. Subscriber will provide any information related to such action reasonably requested by Vertex and use good faith efforts to comply with any reasonable request by Vertex related to any elements of such action that may affect Vertex.

18. Changes; Actions

Subscriber shall promptly give written notice to Vertex of any material adverse change in the business, properties, assets, operations, or condition (financial or otherwise) of the Subscriber, or, to the knowledge of Subscriber, any material adverse change affecting any Authorized Customer. Subscriber shall promptly notify Vertex of any action suit litigation proceeding facts and circumstances and of all tax deficiencies and other proceedings before governmental bodies or officials affecting Subscriber and the threat of reasonable prospect of same which (a) relate to the Front End Platform or the Services (b) might give rise to any indemnification obligation hereunder or (c) might materially and adversely affect Subscriber's ability to perform its obligations under this Agreement.

19. Marketing

The Parties agree that the Subscriber's marketing relate to the Platform is subject to the following:

  • (i) Subscriber shall submit to Vertex in advance each proposed advertisement (including without limitation print online social media television radio or podcast) and any other marketing materials (including without limitation brochures telemarketing scripts electronic web pages electronic web links websites in-app messages banner messages and any other type of marketing material or interactive media) to be disseminated by Subscriber or Authorized Customers or by any third party (including without limitation sponsored and promotional content) to market the Platform or any Vertex services (collectively "Marketing Materials"). Subscriber shall obtain Vertex's prior written approval for all marketing channels and marketing partners to be used to market the Platform. Vertex shall use commercially reasonable efforts to review and approve or provide notice of disapproval and feedback on such Marketing Materials or marketing channel or partner within a reasonable period of time. For the avoidance of doubt Marketing Materials do not include Subscriber or Authorized Customer advertisements or other marketing materials that do not concern the Platform and do not refer in any way to Vertex.
  • (ii) Subscriber is responsible for ensuring that Marketing Materials comply with Applicable Law and Vertex's marketing policies and instructions that it may provide to Subscriber from time to time. Without limiting the foregoing Subscriber will ensure that all Marketing Materials include any disclosures required by Vertex. Vertex will use commercially reasonable efforts to provide Subscriber at least thirty (30) days' prior notice of any changes to Vertex's marketing requirements that add material new limitations to Marketing Materials unless a shorter time is necessary in Vertex's discretion including to comply with Applicable Law or any governmental authority.
  • (iii) Upon approval by Vertex Marketing Materials shall be deemed "Approved Marketing Materials." Subscriber and Authorized Customers may use Approved Marketing Materials and need not seek further approval for use of such forms unless there is: (i) a substantive change in the Marketing Materials including without limitation a new offering to be included in the Marketing Materials; or (ii) a material change in the channel being used to distribute the Approved Marketing Materials; in which case Subscriber shall submit such forms of Marketing Materials to Vertex for re-review and approval. Notwithstanding the above Vertex reserves the right to withdraw approval for any Marketing Materials to the extent Vertex determines in good faith is necessary or appropriate to avoid a risk of non-compliance with Applicable Law to meet the instructions or expectations of a Governmental Authority or if Vertex determines that such Marketing Materials could otherwise give rise to risk to Vertex or any third party.
  • (iv) As between the Parties Subscriber is responsible for ensuring that Marketing Materials the methods to disseminate Marketing Materials and the collection and use of data for marketing purposes are accurate and comply with Applicable Law and this Agreement and for ensuring that Subscribers obtains necessary consents from and complies with any End User opt-outs.

Professional Services

1. Statements of Work

Subscriber may elect to have Vertex provide Professional Services. All such Professional Services will be covered by one or more Statements of Work agreed on by the Parties. The work covered by a particular Statement of Work will be referred to in this Agreement as a "Project." Each Statement of Work will be in writing signed by an authorized representative of each Party will reference this Agreement and will specify for the Project covered by that Statement of Work: (i) a Project contact for each Party; (ii) a description of the Project including any applicable specifications milestones and deliverables to be developed ("Deliverables"); and (iii) the applicable Professional Services Fees. For the avoidance of doubt and as set forth in 'Provision of Services' any Subscriber requests for services that are outside the scope of services described in 'Provision of Services' are subject to Vertex's approval and execution of a Statement of Work. In the event of a conflict between the terms contained herein and the terms of a Statement of Work the terms contained herein shall control unless the Statement of Work specifically states otherwise.

2. Ownership of Deliverables and Work Product

Unless otherwise set forth in a Statement of Work Vertex shall own all right title and interest including without limitation all Intellectual Property Rights in and to all Deliverables and other work product created by Vertex in the performance of the Professional Services; provided however that upon the full payment of the applicable Professional Services Fees any Deliverables shall be considered part of the Platform hereunder.

Financial Terms; Audits

1. Fees

The Subscription Fees are set forth in the applicable Order Form. The Professional Services Fees are set forth in the applicable Statement of Work. All Fees are in United States Dollars.

2. Taxes

All amounts payable under this Agreement are exclusive of sales and use taxes value added taxes and all other taxes and duties (except for any taxes on Vertex's net income which shall be paid by Vertex) the costs of which such taxes and duties shall be invoiced by Vertex and paid by Subscriber in accordance with Section 3 below. If the Subscriber is required by or under any laws or regulations to make any withholding or deduction Vertex agrees to take commercially reasonable steps to avoid the withholding or deduction provide exemption certificates if applicable and otherwise act to mitigate the withholding or deduction. If any withholding or deduction is required notwithstanding such efforts Subscriber shall gross up its payment to Vertex as is necessary to ensure that Vertex receives the full amount payable under this Agreement as if no such withholding or deduction had been made subject to the tax savings provision of this Section.

3. Payments

Unless otherwise provided in an Order Form: Vertex shall invoice Subscriber for the applicable Fees monthly in arrears in United States Dollars and Subscriber authorizes Vertex to debit the bank account designated by Subscriber from time to time via internal transfer or ACH after the end of the prior calendar month. In the event such transfer or ACH does not fully cover such Fees Subscriber will immediately pay Vertex such outstanding Fees. Except as otherwise expressly provided in this Agreement Subscriber shall not be entitled by reason of any set-off counterclaim or other similar deduction to withhold payment of any amount due to Vertex.

4. Late Payments

Undisputed payments that are past due shall accrue interest at the lesser of one- and one-half percent (1.5%) per month or the maximum rate permitted by law. Vertex shall be entitled to recover all reasonable costs of collection (including reasonable attorneys' fees expenses and costs) incurred in attempting to collect undisputed payments from Subscriber that are more than thirty (30) days delinquent. Undisputed payments from Subscriber that are delinquent shall constitute a material breach of this Agreement.

5. Reserve Account

Upon Vertex's request Subscriber will establish an account (the "Reserve Account") as security for all obligations of Subscriber under this Agreement which shall include but is not limited to accountholder fraud negative balances in the FBO Account chargebacks and overlimit. Vertex will determine the Reserve Account structure and the minimum required Reserve Account balance to be maintained which may be adjusted by Vertex from time to time upon written notice to Subscriber due to among other things unexpected or excessive changes that Vertex reasonably believes could result in a higher risk to Vertex or could reasonably be expected to affect Vertex's ability to fulfil its obligations under this Agreement. In such case Subscriber shall have two (2) business days from the notice time to fund the Reserve Account as adjusted by Vertex. The funds may be used by Vertex to pay for any Subscriber obligations associated with this Agreement. Absent any adjustment by Vertex Subscriber shall replenish the Reserve Account monthly unless mutually agreed otherwise by the Parties for any debits pursuant to this Section to maintain the minimum Reserve Account balance. If Subscriber does not replenish the Reserve Account Vertex may offset any funds otherwise payable to Subscriber hereunder and credit such funds to the Reserve Account until it has been replenished. All funds in the Reserve Account shall be returned to Subscriber as soon as commercially practicable after the termination of this Agreement once all Services have been terminated and any outstanding invoices from Vertex have been paid.

6. Audits; Records

Upon reasonable prior written notice and during normal business hours, Subscriber shall cooperate with and provide reasonable access to Vertex and Rail (and their respective designees) to audit Subscriber's and Authorized Customers' compliance with this Agreement, including reasonable access to knowledgeable personnel, systems and records related to use of the Platform and End User onboarding and transactions. Subscriber shall cooperate with any examination, inquiry, audit, information request or site visit required by Vertex, Rail or any governmental authority with supervisory authority over Vertex or Rail.

Subscriber agrees to cooperate with any examination inquiry audit information request site visit or the like which may be required or requested by Vertex or any governmental authority with audit examination or supervisory authority over Vertex. Subscriber will provide all information requested by Vertex or any governmental authority in connection with such party's examination inquiry or audit. Subscriber will maintain complete and accurate books and records relating to its use of the Platform. Vertex shall have the right to conduct (or have a third-party conduct) an audit assessment examination or review of Subscriber's compliance with the terms of this Agreement upon reasonable prior written notice. Subscriber shall reasonably cooperate with such requests by providing reasonable access to knowledgeable personnel its systems and other reasonably requested information including information related to Authorized Customers. Any such audit assessment examination or review shall be conducted during Subscriber's normal business hours in accordance with Subscriber's reasonable policies and procedures provided to Vertex in a manner designed to minimize disruption to Subscriber's operations and any information learned or collected in connection therewith shall constitute Subscriber's Confidential Information.

Subscriber shall maintain complete and accurate books and records relating to Subscriber's its Authorized Customers' and its and their End Users' use of the Platform and maintain copies of such books and records in accordance with industry standards and Applicable Law and without limiting the generality of the foregoing for at least five years after the last transaction date utilizing the Platform.

Subscriber shall cooperate with Rail and any governmental authority with supervisory jurisdiction over Rail, including providing access to Subscriber's personnel, systems, books, and records relevant to compliance with this Agreement.

Term and Termination

1. Term

The term of this Agreement begins on the Effective Date hereof and will continue for two (2) years after such date (the "Initial Term") and thereafter shall renew automatically for successive annual periods (each a "Renewal Term" and collectively with the Initial Term the "Term") unless terminated by either Party by giving no fewer than ninety (90) days' written notice to the other Party.

2. Termination; Suspension

In the event of a material breach of this Agreement by a Party the other Party may terminate this Agreement by giving thirty (30) days prior written notice to the breaching Party; provided however that this Agreement shall not terminate if the breaching Party has cured the breach before the expiration of such thirty (30) day period.

This Agreement is terminable immediately without notice by a Party if the other Party: (i) voluntarily institutes insolvency receivership or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.

Subscriber acknowledges that, in addition to Vertex's existing rights, Vertex may suspend or terminate Subscriber, any Authorized Customer, or any End User immediately where Rail instructs Vertex to do so. Subscriber further acknowledges Vertex's right to suspend, modify or terminate any Services or access by Subscriber, an Authorized Customer or End User immediately where Vertex or Rail determines in its reasonable discretion that such use: (i) poses a security risk to Vertex, Rail, the Platform or any third party; (ii) may adversely impact the availability, functionality or performance of the Platform; (iii) is fraudulent, unlawful or violates this Agreement, Vertex or Rail policies; or (iv) is required by Applicable Law or a governmental authority. Vertex will use commercially reasonable efforts to notify Subscriber unless prohibited by law.

3. Effect of Termination or Expiration

In the event of any termination or expiration of this Agreement:

  • (i) Subscriber shall pay Vertex for all amounts payable hereunder as of the effective date of termination or expiration;
  • (ii) all rights and licenses granted hereunder to Subscriber shall immediately cease and Subscriber Authorized Users Authorized Customers and End Users shall immediately cease all access to and usage of the Platform and the Documentation; and
  • (iii) each Receiving Party shall either return to the Disclosing Party or at the Disclosing Party's direction destroy and provide the Disclosing Party with written certification of the destruction of all documents computer files and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party's possession custody or control; provided however that each Receiving Party may keep a copy of such Confidential Information for legal and/or regulatory purposes and/or as part of any electronic archival back-up system.

4. Transition Assistance

Upon any expiration or termination of this Agreement subject to Subscriber's compliance with all terms of this Agreement and Applicable Law Vertex will provide such information cooperation and assistance to Subscriber for a period not to exceed sixty (60) days from the effective date of termination at Vertex's then-current Professional Services rates as Subscriber may reasonably request to assure an orderly transition to Subscriber or a new service provider. For the avoidance of doubt nothing in this Section shall be construed as granting Subscriber or any third party any license or right to the Platform the Documentation or any other materials provided by Vertex hereunder.

5. Survival

The following provisions shall survive any termination or expiration of this Agreement: ("Recitals and Definitions") 'Subscription Terms' Section 5, 'Professional Services' Section 2, 'Financial Terms; Audits' until all monies due have been paid in full, 'Term and Termination' Section 3, this Section 5, Section 4 above, 'Confidentiality and Data', 'Representations and Warranties; Disclaimer' Section 4, 'Indemnification, Limitation of Liability' and 'General Provisions'.

Confidentiality and Data

1. Use and Disclosure of Confidential Information

The Receiving Party shall with respect to any Confidential Information of the Disclosing Party:

  • (i) use such Confidential Information only in connection with the Receiving Party's performance of its obligations and exercise of its rights under this Agreement;
  • (ii) subject to Section 3 below restrict disclosure of such Confidential Information within the Receiving Party's organization to only those employees and consultants of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party's performance of its obligations and exercise of its rights under this Agreement; provided however that each Party may disclose the other Party's Confidential Information to Custodians as needed for Custodians to perform their obligations to Subscriber Authorized Customers and/or Vertex (and Custodians' agreements with such Disclosing Party shall govern Custodians' use and disclosure of such Confidential Information); and
  • (iii) except as expressly contemplated under the preceding clause (ii) not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.

2. Protection of Confidential Information

The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).

3. Compliance by Personnel

Except with respect to disclosures made to Custodians pursuant to Section 'Custodians':

  • (i) the Receiving Party shall prior to providing any employee or consultant access to any Confidential Information of the Disclosing Party inform such employee or consultant of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party's obligations hereunder with respect to such Confidential Information; and
  • (ii) the Receiving Party shall be responsible to the Disclosing Party for any violation of this Section 3 by any such employee or consultant.

4. Required Disclosures

In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition interrogatory request for documents subpoena civil investigative demand or other process or otherwise) the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained or that the Disclosing Party waives compliance with the provisions hereof the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed and shall use commercially reasonable efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.

5. Use of Data

Notwithstanding anything to the contrary, Vertex and Rail may (themselves or through their service providers): (i) during the Term, Process and use any data they receive from Subscriber, Authorized Customers and/or End Users (including End User Data) to perform their obligations hereunder and to operate, maintain and improve the Platform and Services in accordance with the Privacy Policy (Vertex) and the Rail Privacy Policy (Rail); and (ii) during and after the Term, anonymize such data so that individuals are not identified, merge such anonymized data with other data and use such anonymized data for reporting, planning, development and promotional purposes.

Subscriber represents and warrants that it has obtained (and shall ensure Authorized Customers obtain) all necessary rights and consents to provide Vertex and Rail the rights granted herein to Process End User Data and other data as permitted in this Agreement, the Privacy Policy and the Rail Privacy Policy.

6. Appropriate Safeguards

Subscriber shall ensure Authorized Customers establish and maintain appropriate administrative technical and physical safeguards designed to:

  • (i) protect the security confidentiality and integrity of the End User Data;
  • (ii) ensure against any anticipated threats or hazards to its security and integrity;
  • (iii) protect against unauthorized access to or use of such information or associated records which could result in substantial harm or inconvenience to any End User; and
  • (iv) ensure the proper disposal of End User Data (collectively the "Information Security Program").

At all times during the Term: (v) Subscriber shall and shall ensure Authorize Customers use at least the same degree of care in protecting the End User Data against unauthorized disclosure as it accords to its other confidential customer information but in no event less than a reasonable standard of care; and (vi) the Information Security Program shall be in compliance with all Privacy Laws. Subscriber will maintain and shall ensure Authorized Customers maintain commercially reasonable industry standard data encryption policies and controls governing the storage and transmission of data tapes images recordings and records maintained produced or received by Subscriber or Authorized Customers in connection with the Platform.

7. Security Incidents

In the event a Party suffers unauthorized access to End User Data such Party will notify the other Party in writing as soon as reasonably practicable but in no event later than forty-eight (48) hours (or such shorter timeframe if required under Applicable Law) after such incident is discovered by such Party unless prohibited by Applicable Law. Such notification will include to the extent known at the time of such notice and unless otherwise prohibited by Applicable Law:

  • (i) a description of the facts and circumstances surrounding such incident and the known effects thereof on the other Party;
  • (ii) End User Data that was subject to such incident; and
  • (iii) the corrective actions taken or to be taken by such Party in response to such incident.

In the event of any such incident the accessed Party will promptly use its best efforts to prevent a recurrence of any such incident. The access Party agrees to cooperate in good faith with the other Party in handling such an incident including assisting with any investigation and unless prohibited by Applicable Law making available records logs files data reporting and other materials reasonably requested by the other Party or required to comply with Applicable Law. Vertex shall have final approval over any notice to End Users regarding any such incident such approval not to be unreasonably withheld conditioned or delayed.

8. Irreparable Injury

Each Party acknowledges that the other Party may be irreparably harmed by any breach of this Section and agrees that such other Party may seek in any court of appropriate jurisdiction an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy including monetary damages the non-breaching Party would otherwise have under or with regard to this Agreement.

Representations and Warranties; Disclaimer

1. Mutual Representations and Warranties

Each Party represents and warrants that:

  • (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and
  • (ii) the execution and delivery of this Agreement by it and the performance of its obligations and exercise of its rights hereunder:
    • (a) will not conflict with or violate any Applicable Law; or
    • (b) are not in violation or breach of and will not conflict with or constitute a default under any contract agreement or commitment binding upon it including without limitation any non-disclosure confidentiality non-competition or other similar agreement.

2. Representations and Warranties of Vertex

In addition to the representations and warranties set forth above Vertex represents and warrants that:

  • (i) Vertex shall use commercially reasonable efforts to ensure that the Platform will not contain any Malicious Code;
  • (ii) all Professional Services and Support Services shall be performed in a professional and workmanlike manner;
  • (iii) the SaaS Services shall comply in all material respects with the Documentation;
  • (iv) Vertex is and shall remain during the Term duly authorized under all Applicable Laws and has made or obtained and shall maintain in full force and effect during the Term all licenses permits and registrations necessary to provide the Services; and
  • (v) Vertex has not received on or before the Effective Date any written notice or other communication from any governmental body regarding any alleged failure to make or obtain any license permit or registration necessary to provide the Services.

3. Representations and Warranties of Subscriber

In addition to the representations and warranties set forth in Section 1 above Subscriber represents warrants and covenants that:

  • (i) Subscriber and its respective officers directors employees and agents (collectively the "Subscriber Representatives") are in compliance with the anti corruption, anti bribery, and public integrity laws of the Commonwealth of Dominica and any rules and regulations thereunder and similar laws of foreign jurisdictions;
  • (ii) the Subscriber Representatives are in compliance with the Money Laundering (Prevention) Act, 2011, the Money Laundering Prevention Regulations SRO 4 of 2013, the Proceeds of Crime Act, (including any recordkeeping or reporting requirements thereunder) all applicable KYC laws and regulations and the anti-money laundering laws and regulations of other jurisdictions;
  • (iii) Subscriber and Authorized Customers shall comply with U.S. Anti-Money Laundering Laws, including the Bank Secrecy Act and applicable provisions of the USA PATRIOT Act, and shall provide all KYC/AML information reasonably requested by Rail (and Custodians) for onboarding, ongoing monitoring, and regulatory inquiries;
  • (iv) Subscriber and Authorized Customer's products and services made available through the Front End are in compliance with Applicable Law and provide all disclosures required to comply with Applicable Law including the Electronic Funds Transfer Act, 2013 of the Commonwealth of Dominica;
  • (v) none of its officers directors or principals has been convicted of or have agreed to enter into a pretrial diversion or similar program in connection with the prosecution of a criminal offense involving theft dishonesty breach of trust money laundering the illegal manufacture sale distribution of or trafficking in controlled substances or substantially equivalent activity in a domestic military or foreign court; and
  • (vi) the Subscriber Representatives Authorized Customers and the End Users
    • (a) are not a Prohibited User; and
    • (b) do not to Subscriber's knowledge engage in any dealings or transactions with Prohibited Users.

4. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN THE SERVICES THE PLATFORM THE FRONT END THEIR COMPONENTS ANY UPDATES THE DOCUMENTATION THE DELIVERABLES AND ANY OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND NEITHER PARTY MAKES ANY WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY NON-INFRINGEMENT FITNESS FOR A PARTICULAR PURPOSE ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING COURSE OF PERFORMANCE OR USAGE OF TRADE. To the extent that a Party may not as a matter of Applicable Law disclaim any warranty the scope and duration of such warranty shall be the minimum permitted under such law.

Indemnification

1. Indemnification by Vertex

Subject to Section 2 below, Vertex shall defend indemnify and hold harmless Subscriber and its officers directors managers and employees from all liabilities losses fines penalties costs and expenses including reasonable attorneys' fees (collectively "Losses") incurred by them in connection with any third-party claim action or proceeding (each a "Claim"):

  • (i) arising from Vertex's fraud gross negligence or wilful misconduct; and
  • (ii) alleging that the use of the Platform in accordance with this Agreement infringes violates or misappropriate any third-party Intellectual Property Rights.

2. Exceptions to Vertex Indemnification Obligations

Vertex shall not be obligated to indemnify defend or hold harmless the parties set forth in Section 1 above to the extent that the Claim arises from:

  • (i) use of the Platform in combination with modules apparatus hardware software or services not provided by Vertex;
  • (ii) use of the Platform that violates this Agreement or any Applicable Law;
  • (iii) the alteration or modification of the Platform by a party other than Vertex; or
  • (iv) any action taken by Vertex or its personnel including without limitation changes to the Subscriber's or Authorized Customers' data or any transaction executed on behalf of the Subscriber or Authorized Customers as a result of instructions from Subscriber to Vertex.

3. Infringement Claims

In the event that Vertex reasonably determines that the Platform is likely to be the subject of a Claim of infringement violation or misappropriation of third-party rights Vertex shall have the right (but not the obligation) at its own expense and option to:

  • (i) procure for Subscriber the right to continue to use the Platform as set forth hereunder;
  • (ii) replace the infringing components of the Platform with other components with the same or similar functionality that are reasonably acceptable to Subscriber; or
  • (iii) suitably modify the Platform so that it is non-infringing and reasonably acceptable to Subscriber.

If none of the foregoing options is available to Vertex on commercially reasonable terms Vertex may terminate this Agreement without further liability to Subscriber. This Section 3 together with the indemnity provided under Section 1 above states Subscriber's sole and exclusive remedy and Vertex's sole and exclusive liability regarding infringement violation or misappropriation of any Intellectual Property Rights of a third party.

4. Indemnification by Subscriber

Subscriber shall defend indemnify and hold harmless Vertex and its officers directors managers and employees (each a "Vertex Indemnitee") from all Losses incurred by them in connection with any Claim:

  • (i) arising from Subscriber's Authorized Customer's or End User's fraud gross negligence or wilful misconduct;
  • (ii) arising from Subscriber's breach of its obligations representations and warranties hereunder including those applicable to Authorized Customers and End Users;
  • (iii) alleging that the use of any materials provided by Subscriber or Authorized Customers in accordance with this Agreement infringes violates or misappropriate any third-party Intellectual Property Rights;
  • (iv) arising from any Authorized Users' Authorized Customers' or End Users' access to and use of the Platform and/or Front End except to the extent covered by Vertex's indemnification obligations under Section 1 above;
  • (v) arising from Subscriber's breach of any Custodian Agreements;
  • (vi) arising from Subscriber's or Authorized Customer's provision of End User Data to Vertex or the processing or use of the End User Data as permitted in this Agreement; or
  • (vii) Subscriber's products or services except to the extent related to the SaaS Services.

5. Procedure for Handling Indemnification Claims

In the event of any Claim for which indemnification is available the indemnified Party shall give prompt written notice of any such Claim to the indemnifying Party; provided however that the failure of the Party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder except to the extent that the indemnifying Party demonstrates actual damage caused by such failure. The indemnifying Party shall have the right to control and direct the investigation defense and settlement of each such Claim; provided that Vertex shall have the right to control and direct the investigation defense and settlement of any such Claim brought by a governmental authority. The indemnified Party shall reasonably cooperate with the indemnifying Party (at the indemnifying Party's sole cost and expense) in connection with the foregoing. The indemnified Party may participate in the defense of the Claim with counsel of its own choosing at its own cost and expense on a strictly monitoring basis. The indemnifying Party shall not enter into any settlement or resolution of any Claim that would constitute an admission of guilt or liability on the part of the indemnified Party without the indemnified Party's express prior written consent.

Limitation of Liability

1. Liability Exclusion

SUBJECT TO 'LIMITATION OF LIABILITY' SECTION 3 NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY'S RIGHTS) FOR CONSEQUENTIAL PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS LOSS OF USE OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THIS AGREEMENT REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED HAD OTHER REASON TO KNOW OR IN FACT KNEW OF THE POSSIBILITY THEREOF. FROM TIME TO TIME SUBSCRIBER MAY INSTRUCT VERTEX TO TAKE CERTAIN ACTIONS INCLUDING BUT NOT LIMITED TO MAKING CHANGES TO SUBSCRIBER'S DATA OR EXECUTING TRANSACTIONS ON BEHALF OF THE SUBSCRIBER; IN NO EVENT WILL VERTEX HAVE ANY LIABILITY WITH RESPECT TO ANY SUCH ACTION TAKEN AT SUBSCRIBER'S INSTRUCTION UNLESS DUE TO VERTEX'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

2. Limitation of Damages

SUBJECT TO 'LIMITATION OF LIABILITY' SECTION 3 VERTEX'S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT TORT BREACH OF WARRANTY OR OTHERWISE) WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO VERTEX BY SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

3. Exceptions

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN 'LIMITATION OF LIABILITY' SECTION 1 AND SECTION 2 SHALL NOT APPLY TO:

  • (I) SUBSCRIBER'S INDEMNIFICATION OBLIGATIONS SET FORTH IN 'INDEMNIFICATION' SECTION 4;
  • (II) A PARTY'S FRAUD GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR
  • (III) SUBSCRIBER'S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER OR BREACH OF 'FINANCIAL TERMS; AUDITS' SECTION 2.4.

General Provisions

1. Third-Party Beneficiaries

Rail is an intended third-party beneficiary of the following sections of this Agreement: Subscription Terms, Provision of Services, Access to Documentation, Restrictions on Use, Title, End User Agreements and AML / KYC / Sanctions, and may enforce those provisions directly.

2. Notices

Unless otherwise specified herein all notices and other communications between the Parties (other than routine operational communications) required or permitted by this Agreement or by Applicable Law will be deemed properly given if given by:

  • (i) personal service;
  • (ii) registered or certified mail postage prepaid return receipt requested; or
  • (iii) nationally or internationally recognized private courier service to the respective addresses of the Parties set forth in the Order Form or such other address as the respective Parties may designate by like notice from time to time.

Notices so given shall be effective upon: (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing whichever occurs first.

3. Relationship of the Parties

Each Party is an independent contractor of the other Party. Nothing herein shall constitute a partnership between or joint venture by the Parties or constitute either Party the agent of the other.

4. Assignment

Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party; provided however that Vertex may upon written notice to Subscriber and without the consent of Subscriber assign or otherwise transfer this Agreement:

  • (i) to any of its Affiliates; or
  • (ii) in connection with a change of control transaction (whether by merger consolidation sale of equity interests sale of all or substantially all assets or otherwise).

Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.

5. Publicity

Subscriber shall not represent itself as Rail nor imply that End Users contract directly with Rail. Subscriber shall accurately describe Vertex as the service provider and Rail as the upstream infrastructure provider utilized by Vertex.

6. Force Majeure

Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay or both is caused directly or indirectly without fault by such Party by any reason beyond its reasonable control including but not limited to fire flood earthquake elements of nature or acts of God acts of state acts of war terrorism riots civil disorders rebellions revolutions quarantines epidemics pandemics embargoes and other similar governmental action (each a "Force Majeure Event"). Any Party so delayed in its performance will promptly notify the other by telephone or by the most timely means otherwise available (to be confirmed in writing within two (2) business days of the inception of such delay) and describe in reasonable detail the circumstances causing such delay. In such event the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided however if the delay or failure continues for more than thirty (30) consecutive days the Party not relying on the excusable delay may terminate this Agreement upon written notice to the other Party. In order to avail itself of the relief provided in this Section a Party must act with due diligence to remedy the cause of or to mitigate or overcome such delay or failure.

7. Governing Law

The validity interpretation and performance of this Agreement shall be governed by the laws of the Commonwealth of Dominica without giving effect to the conflicts of laws provisions thereof. Any disputes controversies or claims in connection with or arising out of this Agreement its negotiation breach existence validity or termination shall be brought exclusively before the competent courts of the Commonwealth of Dominica. Each Party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each Party irrevocably waives to the fullest extent permitted by Applicable Law any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.

8. Modification

Vertex may modify all or any part of this Agreement from time to time and such updated Agreement will be effective as of the date as may be specified in the updated Agreement or Vertex's notice to Subscriber. If Vertex makes changes to the Agreement that are material it will use reasonable efforts to notify Subscriber. Subscriber's continued access or use of the SaaS Services after the modified Agreement has become effective will be deemed Subscriber's acceptance of the modified Agreement. Except as set forth in this Agreement this Agreement may not be modified except in writing and signed by authorized representatives of both Parties.

9. No Waiver

The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right power or privilege under this Agreement shall operate as a waiver of such right power or privilege and no single or partial exercise of any such right power or privilege shall preclude any other or further exercise of such right power or privilege or the exercise of any other right power or privilege.

10. Severability

If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction the other provisions of this Agreement will remain in full force and effect and if legally permitted such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties' intent.

11. Entire Agreement

This Agreement each Order Form and any executed Statements of Work contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. There are no other oral or written understandings terms or conditions and neither Party has relied upon any representation express or implied not contained in this Agreement or an Order Form. In the event of any conflict between any terms or conditions contained in this Agreement an Order Form any Statement of Work or any Schedule to this Agreement the following agreements and documents shall control to the extent of the conflict in the following order of descending precedence:

  • (i) the Order Form;
  • (ii) the body of this Agreement;
  • (iii) the applicable Statement of Work; and
  • (iv) the applicable Schedule.

Notwithstanding the foregoing provisions of this Agreement may be modified in a Statement of Work solely for the purposes of that Statement of Work only by an express statement specifically identifying the Section(s) of this Agreement to be modified.