Platform Agreement

Last Updated: July 15,2024

This PLATFORM AGREEMENT including the attached schedules which are hereby incorporated (collectively this “Agreement”) is entered into by and between [Layer2 Financial Inc.] (“Layer2 Financial”) and the entity identified on the Order Form (“Subscriber”). By executing or otherwise agreeing to an Order Form that references this Agreement, Subscriber agrees to the terms of this Agreement effective as of the date Subscriber executes or otherwise agrees to the Order Form (the “Effective Date”). If Subscriber is entering into this Agreement on behalf of a company or other legal entity, Subscriber represents that it has authority to bind such entity to this Agreement. Layer2 Financial and Subscriber may each be referred to individually as a “Party” and collectively as the “Parties.”

WHEREAS Layer2 Financial has developed, operates and maintains the Platform (as defined below); and

WHEREAS Subscriber desires to access the Platform and use the Services (as defined below) on behalf of itself and its 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 Subscriber 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 national, federal, state, county and local law, ordinance, regulation, rule, code and order, including without limitation all Privacy Laws.
“Assets Under Custody” or “AUC” means any virtual assets under the custody of Custodians under the Custodian Agreements.
“Authorized Users” mean Subscriber’s employees and Contractors whom Subscriber authorized 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 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 a 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 in the immediately prior sentence above shall not apply with respect to any End User Data, which shall always be and remain Subscriber Confidential Information of Layer2 Financial, subject to the restrictions set forth herein.
“Contractor” means any third party that is under contract to provide services to 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 Subscriber and Custodians pursuant to which Custodians provide their custody services to Subscriber.
“Custodians” means the parties that provide custody services to Subscriber with respect to virtual assets pursuant to Customer 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 Subscriber pursuant to the Custodian Agreements.
“Documentation” means all documentation (whether in hard copy, electronic or digital form), including all technical documentation, manuals, descriptions, instructions, drawings, file layouts, flow-charts, 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 and all information about End Users provided by Subscriber to Layer2 Financial or to which Layer2 Financial otherwise has access by virtue of this Agreement.
“End Users” mean Subscriber’s customers who have provided KYC data via the Front End and subsequently (i) successfully complete Layer2 Financial’ 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 Subscriber or a number of End Users. Subscriber shall not 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” mean the Subscription Fees and the Professional Services Fees, collectively.
“Front End” means the front end user interface hosted, managed, and/or supported by Subscriber that enables End Users the ability to, among other things, enter KYC data to establish an Account.
“Intellectual Property Rights” mean all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress or other proprietary trade designations, including all registrations and applications therefor; (iv) all rights throughout the world to proprietary know-how, trade secrets, and other Confidential Information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.
“KYC” means procedures determined by Layer2 Financial 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 or disrupt the operation of, permit unauthorized access to, erase, destroy or modify any software, hardware, network or other technology.
“Master Accounts” mean Subscriber and End User master virtual asset FBO Accounts custodied with Custodians for the benefit of Subscriber 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 Subscriber and Layer2 Financial have agreed to, whether via Layer2 Financial’s online portal, a mutually executed order form, or otherwise, that references this Agreement. Each Order Form will form part of this Agreement and will be subject to the terms and conditions contained herein.
“Person” means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency or political subdivision thereof, or other entity.
“Personal Information” means any information that is defined as “personal information,” “personal data,” “nonpublic personal information” or other similar terms under any Privacy Law.
“Platform” means Layer2 Financial’ 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 https://layer2financial.com/ .
“Privacy Laws” mean any applicable national, federal and state laws or regulations relating to the collection, use, Processing and protection of Personal Information in the jurisdictions in which Subscriber does business.
“Privacy Policy” means Layer2 Financial’ then-current privacy policy available at https://legal.layer2financial.com/legal/privacy/ as may be updated from time to time.
“Processing” shall mean and include any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, accessing, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Professional Services” mean 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 upon by the Parties in one or more Statement(s) of Work.
“Professional Services Fees” mean the fees due to Layer2 Financial for the Professional Services as set forth in the applicable Statement of Work.
“Prohibited User” is any person or entity that is (i) the subject of any economic or trade sanctions administered or enforced by any governmental authority, including being designated on any list of prohibited or restricted parties by any governmental authority, such as the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce Denied Persons List, Entity List, the E.U. Consolidated List of persons and the U.K. Consolidated List of Financial Sanctions Targets, (ii) located, a resident of, or organized in any jurisdiction or territory that is the subject of comprehensive country-wide or regional economic sanctions or has been designated as “terrorist supporting” by the United Nations or the governmental authority of the European Union, United Kingdom or the United States, or (iii) owned or controlled by such persons or entities listed in (i)-(ii).
“SaaS Services” mean Layer2 Financial’ provision of access to and usage of the Platform as set forth herein, and all related hosting, maintenance, and Support Services (as defined below) provided by Layer2 Financial.
“Services” mean the SaaS Services and the Professional Services, collectively.
“Statement of Work” means a written statement of work entered into by the Parties as more fully described in Section 2.1 below.
“Subscriber Personal Information” means the Personal Information of or with respect to Subscriber and its current, former and prospective employees, End Users and Contractors (other than Layer2 Financial or Custodians).
“Subscription Fees” mean the fees due to Layer2 Financial for the SaaS Services as set forth in the Order Form.
“Updates” mean any error correction, bug fix, patch, enhancement, update, upgrade, new version, release, revision or other modification to the Platform provided or made available by Layer2 Financial pursuant to this Agreement.

SUBSCRIPTION TERMS

Subscription

Subject to the terms and conditions of this Agreement, Layer2 Financial hereby grants Subscriber during the Term (as defined below) a limited, non-exclusive, non-transferable (except as permitted under Section 11.3) right and license to: (i) authorize End Users to access and use the Platform via the Front End to, among other things, buy, sell, transfer and hold Layer2 Financial approved virtual assets, open or close Accounts accessible through the Platform, and other services provided by or on behalf of Layer2 Financial through the Platform from time to time, subject to configurations selected by Subscriber and agreed to by Layer2 Financial; and (ii) authorize its Authorized Users to access and use the Platform via a dashboard, in object code only, for Subscriber (in conjunction with services provided by Custodians) to service Accounts and Master Accounts, and to perform first-level support to 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.

Provision of Services

Subject to the terms and conditions of this Agreement, Layer2 Financial shall maintain and support the Platform. Layer2 Financial agrees to use commercially reasonable efforts to provide Support Services. Subscriber’s sole and exclusive remedy for any failure of Layer2 Financial to meet its obligations set forth in this Agreement shall be to exercise any termination rights it may have under Section 5.2.1 below. Subscriber, Authorized Users, 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, Layer2 Financial 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 Layer2 Financial provide integration, custom development, or other Professional Services outside the scope of this Section, such professional services will be governed by Section 3.

Access to Documentation

Layer2 Financial 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.

Restrictions on Use

Except to the extent expressly permitted in this Agreement, Subscriber shall not (and shall not authorize or permit any 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) make the Platform available on a “service bureau” basis; (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 shall ensure that no End User is a Prohibited User.

Title

As between Layer2 Financial and Subscriber: (i) Layer2 Financial 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 Layer2 Financial hereunder (collectively the “Layer2 Financial Materials”), and Subscriber shall have no rights with respect to the same other than those license rights expressly granted under this Agreement; and (ii) 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 Layer2 Financial 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 Layer2 Financial with the End User Data and any other data that Subscriber provides under this Agreement for use by Layer2 Financial 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 for such purposes does not violate any Applicable Law, any of Subscriber’s privacy policies, or any contract that Subscriber is a party to.

End User Agreements

Subscriber shall cause each End User to acknowledge and accept an agreement (including online click-through terms of use) that (i) contains provisions as protective of the Layer2 Financial Materials as the terms set forth herein, including without limitation Sections 2.4, 2.5, 6 and 7.4; (ii) names Layer2 Financial an express intended third-party beneficiary with the right to enforce its Intellectual Property Rights directly against the applicable End User; (iii) clearly and conspicuously discloses to End Users that Layer2 Financial and/or its service providers shall Process the End User Data pursuant to and in accordance with the Privacy Policy; and (iv) contains any other Layer2 Financial end user agreement or other disclosures reasonably required by Layer2 Financial, including to ensure the Platform is provided in accordance with Applicable Law. Subscriber shall ensure that its End User agreements comply with Applicable Law and provide all disclosures required under Applicable Law or otherwise required for Layer2 Financial to provide End Users services contemplated hereunder in compliance with Applicable Law. Subscriber shall promptly comply with any modification or change to such End User agreements (or such process to obtain End User’s acceptance thereof) that is reasonably requested by Layer2 Financial to comply with Applicable Law, this Agreement, or Layer2 Financial’ risk management policies.

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 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) Layer2 Financial is not the provider of any Custody Services, nor is Layer2 Financial 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 Layer2 Financial 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 Layer2 Financial) 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 Layer2 Financial under this Agreement. THE CUSTODY SERVICES ARE PROVIDED BY THE CUSTODIANS AND NOT BY Layer2 Financial AND Layer2 Financial 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.

Modifications; No Contingency for Future Commitments

Layer2 Financial 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 Layer2 Financial through updates to the Documentation. Subscriber acknowledges and agrees that such modifications may require Subscriber to adjust its integration in order 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.

Cooperation; Records

Subscriber acknowledges that Layer2 Financial’ ability to implement and provide the Services is dependent on Layer2 Financial having access to (and being able to spend time with) employees of Subscriber and designated third parties, and also dependent on Layer2 Financial being provided with (and continuing to receive) complete, accurate, up-to-date, and timely data, information, and other materials as reasonably requested by Layer2 Financial in connection with the initial diligence and ongoing monitoring of Subscriber and its End Users. Subscriber agrees to provide such data, information, and other materials to Layer2 Financial, Custodians, and any governmental or regulatory authority as reasonably requested by Layer2 Financial and shall cause any designated third parties to cooperate with Layer2 Financial for Layer2 Financial to implement and provide the Services on the schedules adopted by the Parties. In addition, Subscriber shall actively and in good faith participate in Layer2 Financial’ compliance and risk management activities in cooperation with Layer2 Financial and Custodians. Without limiting the generality of the foregoing, (i) Subscriber hereby agrees and consents to Layer2 Holdings obtaining credit reports and other information about Subscriber and its 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 Layer2 Financial in an automated fashion. Any credit report obtained by Layer2 Holdings hereunder may be used for any lawful purpose.

Unclaimed Property

Subscriber shall develop a protocol to share information in order to enable Layer2 Financial to comply with applicable state unclaimed property laws (if any). Subscriber will reimburse Layer2 Financial for the third-party costs of compliance with applicable state unclaimed property laws (if any), and Layer2 Financial 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 Layer2 Financial or Subscriber. Subscriber shall be liable to Layer2 Financial for any amounts claimed by states under unclaimed property laws that represent breakage that has been previously paid to Subscriber by Layer2 Financial.

Subscriber Responsibilities

As between Layer2 Financial and Subscriber, Subscriber agrees that it shall be responsible for and liable to Layer2 Financial for all reasonable expenses incurred by Layer2 Financial in connection with (a) over-limit processing, (b) End User fraud, (c) under-floor-limit processing, or (d) Layer2 Financial efforts at fraud remediation or unauthorized transaction recovery, in each case to the extent related to the Subscriber’s or an End User’s use of the Platform, and except for those costs and expenses incurred as a result of Layer2 Financial’ gross negligence or willful 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 Layer2 Financial in connection with an incident subject to this Section 2.12 and all or a portion of such funds are returned to Layer2 Financial as a result of a resolution of such incident, Layer2 Financial 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 Layer2 Financial herein.
Subscriber acknowledges and agrees that it is responsible and liable for all instructions it provides to Layer2 Holdings, whether via the Platform or otherwise, and that Layer2 Holdings may rely on such instructions. Subscriber is solely responsible for ensuring such instructions are accurate and complete. Layer2 Holdings 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 Layer2 Financial’ requirements (which may be provided to Subscriber from time to time). Subscriber will provide each item to Layer2 Financial for Layer2 Financial’ 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 Layer2 Financial 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 Layer2 Financial has the right to reject in its sole discretion any proposed changes to the Front End. Subscriber agrees that Layer2 Financial has the right to audit the Front End for compliance with this Agreement and Subscriber shall provide Layer2 Financial 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 Layer2 Financial during such audit. Subscriber shall be responsible for all reasonable and documented out-of-pocket expenses related to the review of any such materials.

Acknowledgment

Subscriber acknowledges that the Accounts and Master Accounts shall be subject to suspension (blocking) and cancellation at any time by Layer2 Financial, subject to Applicable Law. Layer2 Financial acknowledges that Subscribers maintain independent customer relationships with End Users, and Subscriber may have independent reasons to suggest suspension or cancellation of an End User Account. As such, where Subscriber (a) reasonably believes in good faith that an End User may be using its Account for fraudulent, illegal purposes, or other suspicious activity; or (b) otherwise intends to suspend or terminate its independent customer relationship with such End User due to actual or suspected fraud or illegal purposes or for violation of any agreement between Subscriber and such End User, it shall promptly notify Layer2 Financial in writing so that such Account be suspended or terminated, as applicable.

End User Disputes and Support

As between the Parties, Subscriber agrees that it is solely responsible for resolving disputes with and providing support to End Users. Subscriber agrees to handle support requests in accordance with Layer2 Financial’ 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 Layer2 Financial (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 but not limited to “errors” under Regulation E, complaints to regulatory agencies, claims of identity theft and any assertion that the Platform or Services are unfair, deceptive, or otherwise violate Applicable Law) or (z) cannot be independently resolved by Subscriber after exhausting commercially reasonable efforts, Subscriber will escalate such complaints or requests to Layer2 Financial and communicate the resolution to the End User in accordance with Layer2 Financial’ instructions and promptly take steps to remediate any underlying issue in accordance with Layer2 Financial’ instructions. Subscriber shall ensure all transaction disputes and complaints (including “errors” under Regulation E) are resolved in accordance with Applicable Law.

Investigations

Subscriber will notify Layer2 Financial 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 Layer2 Financial and use good faith efforts to comply with any reasonable request by Layer2 Financial related to any elements of such action that may affect Layer2 Financial.

Changes; Actions

Subscriber shall promptly give written notice to Layer2 Financial of any material adverse change in the business, properties, assets, operations or condition (financial or otherwise) of Subscriber. Subscriber shall promptly notify Layer2 Financial 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.

Marketing

Subscriber shall submit to Layer2 Financial 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 by any third party (including without limitation sponsored and promotional content) to market the Platform or any Layer2 Financial’ services (collectively “Marketing Materials”). Subscriber shall obtain Layer2 Financial’ prior written approval for all marketing channels and marketing partners to be used to market the Platform. Layer2 Financial 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 advertisements or other marketing materials that do not concern the Platform and do not refer in any way to Layer2 Financial.
Subscriber is responsible for ensuring that Marketing Materials comply with Applicable Law and Layer2 Financial’ 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 Layer2 Financial. Layer2 Financial will use commercially reasonable efforts to provide Subscriber at least thirty (30) days’ prior notice of any changes to Layer2 Financial’ marketing requirements that add material new limitations to Marketing Materials unless a shorter time is necessary in Layer2 Financial’ discretion, including to comply with Applicable Law or any governmental authority.
Upon approval by Layer2 Financial, Marketing Materials shall be deemed “Approved Marketing Materials.” Subscriber 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 Layer2 Financial for re-review and approval. Notwithstanding the above, Layer2 Financial reserves the right to withdraw approval for any Marketing Materials to the extent Layer2 Financial 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 Layer2 Financial determines that such Marketing Materials could otherwise give rise to risk to Layer2 Financial or any third party.
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 obtain necessary consents from and complies with any End User opt-outs.

PROFESSIONAL SERVICES

Statements of Work

Subscriber may elect to have Layer2 Financial 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 Section 2.2, any Subscriber requests for services that are outside the scope of services described in Section 2.2 are subject to Layer2 Financial’ 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.

Ownership of Deliverables and Work Product

Unless otherwise set forth in a Statement of Work, Layer2 Financial 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 Layer2 Financial 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

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.

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 Layer2 Financial’ net income, which shall be paid by Layer2 Financial), the costs of which such taxes and duties shall be invoiced by Layer2 Financial and paid by Subscriber in accordance with Section 4.3.
If the Subscriber is required by or under any laws or regulations to make any withholding or deduction, Layer2 Financial 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 Layer2 Financial as is necessary to ensure that Layer2 Financial 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.

Payments

Unless otherwise provided in an Order Form, Layer2 Financial shall invoice Subscriber for the applicable Fees monthly in arrears in United States Dollars, and Subscriber authorized Layer2 Financial 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 Layer2 Financial 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 Layer2 Financial.

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. Layer2 Financial 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.

Reserve Account

Upon Layer2 Financial’ request, Subscriber will establish an accounts (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. Layer2 Financial will determine the Reserve Account structure and the minimum required Reserve Account balance to be maintained, which may be adjusted by Layer2 Financial from time to time upon written notice to Subscriber due to, among other things, unexpected or excessive changes that Layer2 Financial reasonably believes could result in a higher risk to Layer2 Financial or could reasonably be expected to affect Layer2 Financial’ ability to fulfill 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 Layer2 Financial. The funds may be used by Layer2 Financial to pay for any Subscriber obligations associated with this Agreement. Absent any adjustment by Layer2 Financial, Subscriber shall replenish the Reserve Account on a monthly basis 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, Layer2 Financial 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 Layer2 Financial have been paid.

Audits

Layer2 Financial 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 at least thirty (30) days’ prior written request. Subscriber shall reasonably cooperate with such requests by providing reasonable access to knowledgeable personnel, its systems, Documentation, and other reasonably requested information. Any such audit, assessment, examination or review shall be conducted during Subscriber’s normal business hours and in a manner designed to minimize disruption to Subscriber’s.
Subscriber agrees to cooperate with any examination, inquiry, audit, information request, site visit or the like which may be required or requested by Layer2 Financial or any governmental authority with audit, examination, or supervisory authority over Layer2 Financial. Subscriber will provide all information requested by Layer2 Financial 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. Layer2 Financial 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. 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 Layer2 Financial, 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 and 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.

TERM AND TERMINATION

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.

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.
In addition, Layer2 Financial shall have the right to suspend, modify, or terminate the provision of any of its Services or this Agreement as Layer2 Financial reasonably determines is necessary to comply with Applicable Law or direction or order imposed by any Governmental Authority and may terminate this Agreement immediately upon notice to Subscriber in each of the following circumstances.
Layer2 Financial may suspend Subscriber’s or an End User’s right to access and use the Platform in whole or in part immediately upon notice to Subscriber if Layer2 Financial determines in its reasonable discretion that Subscriber’s or an End User’s use or access of the Platform (i) poses a security risk to Layer2 Financial, the Platform, or any third party; (ii) may adversely impact the availability, functionality, or performance of the Platform; or (iii) may be fraudulent. Subscriber will reinstate the Platform once the cause of the suspension has been remedied in Subscriber’s reasonable discretion.

Effect of Termination or Expiration

In the event of any termination or expiration of this Agreement: (i) Subscriber shall pay Layer2 Financial 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 and its Authorized Users 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.

Transition Assistance

Upon any expiration or termination of this Agreement, subject to Subscriber’s compliance with all terms of this Agreement and Applicable Law, Layer2 Financial 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 Layer2 Financial’ 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 Layer2 Financial hereunder.

Survival

The following provisions shall survive any termination or expiration of this Agreement: Section 1 (“Recitals and Definitions”), Section 2.5 (“Title”), Section 3.2 (“Ownership of Deliverables and Work Product”), Section 4 (“Financial Terms; Audits”) until all monies due have been paid in full, Section 5.3 (“Effect of Termination or Expiration”), Section 5.4 (“Transition Assistance”), Section 6 (“Confidentiality and Data”), Section 7.4 (“Disclaimer”), Section 8 (“Indemnification”), Section 9 (“Limitation of Liability”), Section 11 (“General Provisions”), and this Section 5.5 (“Survival”).

CONFIDENTIALITY AND DATA

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 6.3 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 and/or Layer2 Financial (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.

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).

Compliance by Personnel

Except with respect to disclosures made to Custodians pursuant to Section 5.1(ii): (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 5 by any such employee or consultant.

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.

Use of Data

Notwithstanding anything to the contrary contained in this Agreement, Layer2 Financial may either itself or through its service providers: (i) during the Term process and use any data it receives from Subscriber, Authorized Users and/or End Users, including without limitation to use all End User Data in accordance with the Privacy Policy, and to perform its obligations hereunder and operate, maintain and improve the Services; and (ii) both during and after the Term, anonymize any and all such data so that the applicable Authorized Users and End Users are not identified, merge such anonymized data with other data, and use such anonymized data for its reporting, planning, development and promotional purposes and to improve the Services. Subscriber represents and warrants that it has all necessary rights in and to such data to provide Layer2 Financial the rights granted herein to use such data in accordance with this Agreement. Subscriber acknowledges that Layer2 Financial has a customer relationship with End Users with respect to the Platform and may collect information from or about such End Users, and such information provided to or obtained by Layer2 Financial does not constitute End User Data.

Appropriate Safeguards

Subscriber shall 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 (x) Subscriber shall 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 (y) the Information Security Program shall be in compliance with all Privacy Laws. Subscriber will 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 in connection with the Platform.

Security Incidents

In the event a Party suffers authorized 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. Layer2 Financial shall have final approval over any notice to End Users regarding any such incident, such approval not to be unreasonably withheld, conditioned, or delayed.

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

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.

Representations and Warranties of Layer2 Financial

In addition to the representations and warranties set forth in Section 7.1, Layer2 Financial represents and warrants that: (i) Layer2 Financial 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) Layer2 Financial 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) Layer2 Financial 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.

Representations and Warranties of Subscriber

In addition to the representations and warranties set forth in Section 7.1, 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 Foreign Corrupt Practices Act of 1977, as amended, and any rules and regulations thereunder, and similar laws of foreign jurisdictions; (ii) the Subscriber Representatives are in compliance with the U.S. money laundering laws and regulations, the U.S. Bank Secrecy Act, as amended by the USA Patriot Act of 2001 (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’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 Regulation E issued by the Consumer Financial Protection Bureau (CFPB); (iv) 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 (v) the Subscriber Representatives 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.

Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, SECTION 6.2, AND SECTION 7.3, 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

Indemnification by Layer2 Financial

Subject to Section 8.2, Layer2 Financial shall defend, indemnify, and hold harmless Subscriber and its officers, directors, managers, and employees from any and 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 Layer2 Financial’ fraud, gross negligence, or willful misconduct; and (ii) alleging that the use of the Platform in accordance with this Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights.

Exceptions to Layer2 Financial Indemnification Obligations

Layer2 Financial shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 8.1 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 Layer2 Financial; (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 Layer2 Financial; or (iv) any action taken by Layer2 Financial or its personnel, including without limitation changes to the Subscriber’s data or any transaction executed on behalf of the Subscriber as a result of instructions from Subscriber to Layer2 Financial.

Infringement Claims

In the event that Layer2 Financial reasonably determines that the Platform is likely to be the subject of a Claim of infringement, violation or misappropriation of third-party rights, Layer2 Financial 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 Layer2 Financial on commercially reasonable terms, Layer2 Financial may terminate this Agreement without further liability to Subscriber. This Section 8.3, together with the indemnity provided under Section 8.1, states Subscriber’s sole and exclusive remedy and Layer2 Financial’ sole and exclusive liability regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.

Indemnification by Subscriber

Subscriber shall defend, indemnify, and hold harmless Layer2 Financial and its officers, directors, managers, and employees (each a “Layer2 Financial Indemnitee'') from any and all Losses incurred by them in connection with any Claim: (i) arising from Subscriber’s or End User’s fraud, gross negligence, or willful misconduct; (ii) arising from Subscriber’s breach of its obligations, representations, and warranties hereunder, including those applicable to End Users; (iii) alleging that the use of any materials provided by Subscriber in accordance with this Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights; (iv) arising from any Authorized Users’ or End Users’ access to and use of the Platform and/or Front End, except to the extent covered by Layer2 Financial’ indemnification obligations under Section 8.1; (v) arising from Subscriber’s breach of any Custodian Agreements; (vi) arising from Subscriber’s provision of End User Data to Layer2 Financial 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.

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 Layer2 Financial 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

Liability Exclusion

SUBJECT TO SECTION 9.3, 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 Layer2 Financial 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 Layer2 Financial HAVE ANY LIABILITY WITH RESPECT TO ANY SUCH ACTION TAKEN AT SUBSCRIBER’S INSTRUCTION UNLESS DUE TO Layer2 Financial’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

Limitation of Damages

SUBJECT TO SECTION 9.3, LAYER 2 Financial’ 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 Layer2 Financial BY SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

Exceptions

THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9.1 AND SECTION 9.2 SHALL NOT APPLY TO: (I) SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8.4; (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 SECTION 2.4.

GENERAL PROVISIONS

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.

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.

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 Layer2 Financial 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.

Publicity

During the Term, Layer2 Financial shall have the right, but not the obligation to: (i) publicly announce in any and all media now known or hereafter devised that Subscriber is a customer of Layer2 Financial and a user of the Services; and (ii) use Subscriber’s trademarks, service marks, and trade names in any and all media now known or hereafter devised, in accordance with any guidelines provided by Subscriber, to promote Layer2 Financial and/or the Services. For the avoidance of doubt, Subscriber shall be solely responsible for the marketing, advertising, and promotion of its own products and services.

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.

Governing Law Venue

The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of Delaware, 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 proceed in a federal or state court located in the State of Delaware, Borough of Manhattan. 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.

Modification

Layer2 Financial may modify all or any part of this Agreement from time to time, in which case Layer2 Financial will revise the “Last Updated” date at the top of this Agreement, and such updated Agreement will be effective as of the time of posting or such other date as may be specified in the updated Agreement or Layer2 Financial’ notice to Subscriber. If Layer2 Financial 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.

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.

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.

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 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.