Platform Agreement

Last Updated: February 12, 2025

This PLATFORM AGREEMENT, including the attached schedules, which are hereby incorporated (collectively, this “Agreement”), is entered into by and between Layer2 Financial, Inc. (“Layer2 Holdings”) 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 Holdings and Subscriber may each be referred to individually as a “Party” and collectively as the “Parties.”

WHEREAS, Layer2 Holdings 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:

  1. 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.

1.1. “Accounts” means Subscriber and End User Layer2 Accounts and/or Fortress Accounts.

1.2. “Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with, a specified Person.

1.3. “Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to Subscriber or its affiliates from time to time concerning or relating to bribery or corruption.

1.4 “Anti-Money Laundering Laws” means all laws, rules and regulations of any jurisdiction applicable to Layer2 Holdings and/or Subscriber or its affiliates concerning or relating to money-laundering, including the Bank Secrecy Act, 31 U.S.C. § 5311 et seq., and its promulgating regulations and the applicable sections of the Patriot Act and implementing regulations related to know-your-customer and customer identification programs.

1.5 “API” means application program interface.

1.6. “Applicable Law” means any applicable national, federal, state, county, and local law, ordinance, regulation, rule, code, and order, including, without limitation, all Privacy Laws.

1.7. “Approval” or “approval” means Layer2 Holdings’ approval or consent; provided, however, that the fact that Layer2 Holdings has provided such approval or consent shall not mean or otherwise be construed to mean that: (i) Layer2 Holdings has performed any due diligence with respect to the requested or required approval or consent; (ii) Layer2 Holdings agrees that the item or information for which approval or consent is being sought complies with any Applicable Law, Layer2 Holdings' policies or Subscriber’s policy; (iii) Layer2 Holdings has assumed Subscriber’s or any other Person’s obligations to comply with all Applicable Laws, Layer2 Holdings' policies or Subscriber’s policies arising from or related to any requested or required approval or consent; or (iv) any approval or consent impairs in any way Layer2 Holdings’ rights or remedies under this Agreement, including indemnification rights, for the failure of Subscriber to comply with all Applicable Laws or the terms and conditions of this Agreement. Without limiting the foregoing, any approval provided by Layer2 Holdings under this Agreement is solely for exercising oversight over the Platform and Subscriber’s use thereof and no approval constitutes a waiver of any provision if this Agreement or a warranty as to compliance of the matters or materials being approved with Applicable Law, Layer2 Holdings’ policies or Subscriber’s policies or as to the accuracy and completeness of such matters or materials.

1.8. “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.

1.9. “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 Holdings subject to the restrictions set forth herein.

1.10. “Contractor” means any third party that is under contract to provide services to Subscriber.

1.11. “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.

1.12. “Custodian Agreements” means any agreement that may be entered into between Subscriber and Custodians pursuant to which Custodians provide their custody services to Subscriber.

1.13. “Custodians” means the parties that provide custody services to Subscriber with respect to virtual assets. For the avoidance of doubt, such custody services may be performed by one (1) or more parties.

1.14. “Custody Services” means the services provided by Custodians to Subscriber.

1.15. “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.

1.16. “End User Data” means any and all information about End Users provided by Subscriber to Layer2 Holdings or to which Layer2 Holdings otherwise has access by virtue of this Agreement.

1.17. “End Users” mean Subscriber’s customers who have provided KYC data via the Front End and subsequently (i) successfully complete Layer2 Holdings’ and the applicable Custodians’ compliance checks, as required; and (ii) successfully open an Account on the Platform.

1.18. “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.

1.19. “Fees” mean the Subscription Fees and the Professional Services Fees, collectively.

1.20. “Fortress” means Fortress Trust LLC.

1.21. “Fortress Account” means Subscriber and/or End User accounts maintained by Fortress that are accessible via the Platform.

1.22. “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.

1.23. “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.

1.24. “KYC” means procedures determined by Layer2 Holdings for identifying and verifying customers.

1.25. “Layer2 Accounts” means Subscriber and End User accounts maintained on the Platform’s Omnibus Ledger and held within the Master Accounts

1.26. “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.

1.27. “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.

1.28. “Order Form” means the order form that Subscriber and Layer2 Holdings have agreed to, whether via Layer2 Holding’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.

1.29. “Person” means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency, or political subdivision thereof or other entity.

1.30. “Personal Information” means any information that is defined as “personal information,” “personal data,” “nonpublic personal information,” or other similar terms under any Privacy Law.

1.31. “Platform” means Layer2 Holdings’ 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 .

1.32. “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.

1.33. “Privacy Policy” means Layer2 Holdings’ then-current privacy policy, available at , as may be updated from time to time.

1.34. “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.

1.35. “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.

1.36. “Professional Services Fees” mean the fees due to Layer2 Holdings for the Professional Services, as set forth in the applicable Statement of Work.

1.37. “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).

1.38. “SaaS Services” mean Layer2 Holdings’ 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 Holdings.

1.39. “Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by the OFAC or the U.S. Department of State, and/or (b) the United Nations Security Council, the European Union, Canada or Her Majesty’s Treasury of the United Kingdom.

1.40 “Services” mean the SaaS Services and the Professional Services, collectively.

1.41. “Statement of Work” means a written statement of work entered into by the Parties, as more fully described in Section 2.1 below

1.42. “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 Holdings or Custodians).

1.43. “Subscription Fees” mean the fees due to Layer2 Holdings for the SaaS Services, as set forth in the Order Form.

1.44. “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 Holdings pursuant to this Agreement.

  1. SUBSCRIPTION TERMS.

2.1. Subscription. Subject to the terms and conditions of this Agreement, Layer2 Holdings 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 Holdings approved virtual assets, open or close Accounts accessible through the Platform and other services provided by or on behalf of Layer2 Holdings through the Platform from time to time, subject to configurations selected by Subscriber and agreed to by Layer2 Holdings; 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.

2.2. Provision of Services. Subject to the terms and conditions of this Agreement, Layer2 Holdings shall maintain and support the Platform. Layer2 Holdings agrees to use commercially reasonable efforts to provide the Support Services shall be provided pursuant to and in accordance with Schedule A. Subscriber’s sole and exclusive remedy for any failure of Layer2 Holdings to meet its obligations set forth in Schedule A 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 Holdings 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 Holdings provide integration, custom development, or other Professional Services outside the scope of this Section, such professional services will be governed by Section 3.

2.3. Access to Documentation. Layer2 Holdings 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.

2.4. 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.

2.5. Title. As between Layer2 Holdings and Subscriber: (i) Layer2 Holdings 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 Holdings hereunder (collectively, the “Layer2 Holdings 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 Holdings 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 Holdings with the End User Data and any other data that Subscriber provides under this Agreement, for use by Layer2 Holdings 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.

2.6. 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 Holdings Materials as the terms set forth herein, including, without limitation, Sections 2.4, 2.5, 6, and 7.4; (ii) names Layer2 Holdings 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 Holdings 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 Holdings end user agreement (including the Layer2 Holdings end user agreement available at , as may be updated from time to time) or other disclosures reasonably required by Layer2 Holdings, 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 Holdings 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 Holdings to comply with Applicable Law, this Agreement or Layer2 Holdings’ risk management policies. Subscriber shall cause each End User to acknowledge and accept any applicable Third Party Terms (as defined below), including, without limitation, Third Party Terms applicable to the Fortress Accounts. Subscriber acknowledges and agrees that if it uses the Platform on its own behalf, then (i) in addition to this Agreement, Layer2 Holdings’ end user agreement available at , as may be updated from time to time, shall also apply to such use, and (ii) Layer2 Holdings may use such information provided by Subscriber in connection with such use in accordance with its Privacy Policy.

2.7. Custodians. Subscriber acknowledges and agrees that: (i) Layer2 Holdings is not the provider of any Custody Services, nor is Layer2 Holdings 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 Holdings 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 Holdings) 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 Holdings under this Agreement. THE CUSTODY SERVICES ARE PROVIDED BY THE CUSTODIANS AND NOT BY LAYER2 HOLDINGS, AND LAYER2 HOLDINGS 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. Subscriber may be required by Layer2 Holdings to enter into Custodian Agreements directly with Custodians, and, upon Layer2 Holdings’ request, Subscriber shall enter into such Custodian Agreements within a reasonable time as determined by Layer2 Holdings.

2.8. Fortress Accounts. Certain services accessible via the Platform may be provided by or on behalf of Fortress. Layer2 Holdings can choose in its discretion at any time which services provided to Subscriber and/or End Users will be through Fortress Accounts or Layer2 Accounts. Any services accessible via the Platform through a Fortress Account are provided by Fortress (“Fortress Services”), not Layer2 Holdings. For clarity, Layer2 Holdings is not the provider of any money transmitter or other regulated financial products or services accessible through or in connection with the Fortress Accounts. In the event that Layer2 Holdings modifies the provision of any service to be through a Layer2 Account instead of a Fortress Account, or vice versa, Subscriber covenants and agrees, and shall ensure all applicable End Users agree to, provide all necessary consents and permissions and to take all actions reasonably necessary or requested by Layer2 Holdings or Fortress in connection with the foregoing. Subscriber acknowledges and agrees that Fortress may terminate or suspend Subscriber’s or End Users’ access to or use of the Fortress Services and Fortress Accounts at any time in accordance with the Third Party Terms applicable to the Fortress Accounts, and Layer2 Holdings shall have no responsibility or liability to Subscriber or End User in such circumstance.

2.9. Third Party Services. The Platform may enable Subscriber and End Users to access certain services provided by a third party (“Third Party Services”). Layer2 Holdings does not provide any representation or warranty, and will have no liability or obligation, with respect to any Third Party Service. Subscriber’s and its End Users’ access or use of Third Party Services is at their own risk. If Subscriber or End Users have access to Third Party Services, Subscriber acknowledges and agrees that it and its End Users may be required by Layer2 or the applicable third party provider of such Third Party Service to enter into terms and conditions governing the access and use of such Third Party Service (“Third Party Terms”). For clarity, Third Party Services include Fortress Services and Fortress Accounts.

2.10. Modifications; No Contingency for Future Commitments. Layer2 Holdings 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 Holdings 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.

2.11. Cooperation; Records. Subscriber acknowledges that Layer2 Holdings’ ability to implement and provide the Services is dependent on Layer2 Holdings having access to (and being able to spend time with) employees of Subscriber and designated third parties and also dependent on Layer2 Holdings being provided with (and continuing to receive) complete, accurate, up-to-date, and timely data, information, and other materials as reasonably requested by Layer2 Holdings 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 Holdings, Custodians, and any governmental or regulatory authority, as reasonably requested by Layer2 Holdings, and shall cause any designated third parties to cooperate with Layer2 Holdings for Layer2 Holdings 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 Holdings’ compliance and risk management activities in cooperation with Layer2 Holdings and Custodians. Without limiting the generality of the foregoing, 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 Holdings in an automated fashion.

2.12. Unclaimed Property. Subscriber shall develop a protocol to share information in order to enable Layer2 Holdings to comply with applicable state unclaimed property laws (if any). Subscriber will reimburse Layer2 Holdings for the third party costs of compliance with applicable state unclaimed property laws (if any). Subscriber shall be solely liable for any costs and fines related to any challenge by any governmental authority with respect to escheat or unclaimed property laws, regardless of whether such cost is incurred by or such fines are assessed to Layer2 Holdings or Subscriber. Subscriber shall be liable to Layer2 Holdings for any amounts claimed by states under unclaimed property laws that has been previously paid to Subscriber by Layer2 Holdings.

2.13. Subscriber Responsibilities.

2.13.1. As between Layer2 Holdings and Subscriber, Subscriber agrees that it shall be responsible for and liable to Layer2 Holdings for all reasonable expenses, costs and Losses incurred by Layer2 Holdings in connection with (a) over-limit processing, (b) End User transactions, including End User fraud, (c) under-floor-limit processing, or (d) Layer2 Holdings 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 Holdings’ 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 Holdings in connection with an incident subject to this Section 2.13 and all or a portion of such funds are returned to Layer2 Holdings as a result of a resolution of such incident, Layer2 Holdings 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 Holdings herein. Notwithstanding anything to the contrary and for the avoidance of doubt, Subscriber agrees that it shall be responsible for and liable to Layer2 Holdings for all expenses associated with, and any Losses attributable to, End User transactions, including End User negative balances and unauthorized transactions, and all compromised Accounts, including any fraud losses in connection with the Accounts, payment instructions or payment orders, “errors” (as defined by Regulation E), and all fraudulent or unauthorized transactions related to the Services or Accounts.

2.13.2. 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.

2.13.3. 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 Holdings’ requirements (which may be provided to Subscriber from time to time). Subscriber will provide each item to Layer2 Holdings for Layer2 Holdings’ prior review and approval: (i) all policies, procedures, and systems required by Layer2 Holdings to help ensure it meets its regulatory obligations, including but not limited to documents and systems related to anti-money laundering, fraud, consumer protection and complaints, (ii) all Front End interfaces, (iii) diagram of the proposed operational funds flow related to Subscriber’s implementation of the Platform, (iv) End User documentation created or provided by Subscriber, including any amendments or modifications thereto, and (v) 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 Holdings 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. Any failure to do so constitutes a material breach and Layer2 Holdings shall have the right to immediately terminate this Agreement without giving effect to any cure period hereunder, unless cure is permitted by Layer 2 Holdings in writing. Subscriber agrees that Layer2 Holdings has the right to reject, in its sole discretion, any proposed changes to the Front End. Subscriber agrees that Layer2 Holdings has the right to audit the Front End for compliance with this Agreement and Subscriber shall provide Layer2 Holdings with a test account to access for the Front End for the purposes of such audit. Subscriber agrees to promptly correct any deviations from this Agreement identified by Layer2 Holdings during such audit. Subscriber shall be responsible for all reasonable and documented out-of-pocket expenses related to the review of any such materials.

2.13.4. Subscriber shall comply and cause each of its affiliates and contractors to take action to enable Layer2 Holdings, with respect to the services provided hereunder, to comply with all applicable Anti-Money Laundering Laws, Anti-Corruption Laws and Sanctions and shall implement customer identification, anti-money laundering, transaction screening, and OFAC programs, all as approved by Layer2 Holdings and designed specifically to address the Anti-Money Laundering Laws and associated risks with the Accounts and Platform. Without limiting the generality of the foregoing, Subscriber shall (a) maintain an anti-money laundering compliance program that is in compliance with the Anti-Money Laundering Laws, (b) conduct, in all material respects, the due diligence required in the Anti-Money Laundering Laws and Sanctions in connection with all End Users, including with respect to the legitimacy of the applicable End User, and (c) maintain sufficient information to identify the applicable End User for purposes of compliance, in all respects, with the Anti-Money Laundering Laws and Sanctions and Layer2 Holdings’ policies.

2.13.5. If required by Layer2 Holding at any time, Subscriber must establish an anti-money laundering and sanctions compliance program (“AML Program”) that, at a minimum, includes a system of internal controls to ensure ongoing compliance and annual independent testing of the AML Program, including testing for compliance with Applicable Law, designating an anti-money laundering compliance officer responsible for managing anti-money laundering compliance and the AML Program, monitoring transactions for suspicious activities, and providing appropriate and ongoing training for Subscriber personnel. The AML Program is subject to Layer2 Holdings’ approval and any subsequent changes or modifications to the AML Program must be submitted to Layer2 Holdings prior to the effective date of any such change or modification, for approval. Layer2 Holdings may, in its sole discretion, require Subscriber to modify or amend or update the AML Program, from time to time, and Subscriber shall effectuate such modification, amendment or update in compliance with Layer2 Holdings’ instruction. Upon Layer2 Holdings’ request, Subscriber shall immediately provide copies of its AML Programs and all records related thereto.

2.13.6. Subscriber shall adopt, implement, and maintain fraud monitoring practices consistent with customary, reasonable, and usual standards of fraud monitoring practices for well-managed, regulated financial institutions that originates or offers accounts and services that are similar to Layer2 Holdings Services, and, without limiting anything herein, Subscriber shall (a) monitor usage of products and services offered to each End User; (b) immediately report any suspicious activities in accordance with this Section 2.13.5 and Layer2 Holdings’ policies, as provided to Subscriber from time to time; (c) take appropriate steps to prevent or stop such fraudulent and/or suspicious activity; and (d) if required by Layer2 Holdings, immediately terminating the End User’s access to the Services. Subscriber shall identify and immediately report to Layer2 Holding any activity that suggests or indicates potential money laundering or other potential criminal activity, does not appear to have a valid business purpose, is not consistent with the activities expected of an End User or that appears to be or is fraudulent or suspicious. Layer2 Holding shall assess the information contained in any such report and, after performing such investigation as it considers appropriate in light of such information, determine whether or not to file a Suspicious Activity Report (“SAR”) with the applicable regulatory authority. Subscriber shall assist Layer2 Holding with any investigation and provide any information to Subscriber that Layer2 Holding may request. Layer2 Holding shall have sole discretion and responsibility as to whether to file a SAR with respect to any activity identified in an unusual activities report. Subscriber acknowledges that the contents of a SAR and the fact that Layer2 Holding has filed a SAR are strictly confidential under Applicable Law.

2.14. Acknowledgment. Subscriber acknowledges that the Accounts and Master Accounts shall be subject to suspension (blocking) and cancellation at any time by Layer2 Holdings, subject to Applicable Law. Layer2 Holdings acknowledges that Subscribers maintains 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 Holdings in writing so that such Account be suspended or terminated, as applicable. Any such notice must be accompanied by the reason for suspension or termination, as well as any document supporting such reason. Layer2 may request, and Subscriber shall immediately provide, any information related to an End User and its relationship with Subscriber.

2.15. 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 Holdings’ 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 Holdings (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 any complaint related to Layer2 Holdings or its services, including the Platform and Accounts, or any complaint and support request relating to the Platform that relate to a regulatory matter (including but not limited to “errors” under Regulation E, complaint to regulatory agencies, claim of identity theft, and any assertion that the Platform or Services are unfair, deceptive or otherwise violate Applicable Law), Subscriber will notify Layer2 Holdings of such complaint or request to within two (2) business days of receipt of such compliant or request (notice to be delivered to or any other contact address specifically designated by Layer2 Holdings) and will communicate the resolution to the End User in accordance with Layer2 Holdings’ instructions and promptly take steps to remediate any underlying issue in accordance with Layer2 Holdings’ instructions. Subscriber shall ensure all transaction disputes and complaints (including “errors” under Regulation E) are resolved in accordance with Applicable Law.

2.16. Investigations. Subscriber will notify Layer2 Holdings if it becomes aware of any investigation, inquiry, proceeding, claim or action is 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 Holdings and use good faith efforts to comply with any reasonable request by Layer2 Holdings related to any elements of such action that may affect Layer2 Holdings.

2.17. Changes; Actions. Subscriber shall promptly give written notice to Layer2 Holdings of any material adverse change in the business, properties, assets, operations or condition, financial or otherwise, of Subscriber. Subscriber shall promptly notify Layer2 Holdings 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.

2.18. Marketing.

2.18.1. Prior to implementation and provisioning of the Services, Subscriber shall submit to Layer2 Holdings 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 Holdings’ services (collectively, “Marketing Materials”), for Layer 2 Holdings’ approval. Subscriber shall obtain Layer2 Holdings’ prior written approval for all marketing channels and marketing partners to be used to market the Platform, and no new marketing channels or marketing partners may be used without Layer2 Holdings’ written consent. Layer2 Holdings 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 Holdings.

2.18.2. Subscriber is responsible for ensuring that Marketing Materials comply with Applicable Law and Layer2 Holdings’ 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 Holdings. Layer2 Holdings will use commercially reasonable efforts to provide Subscriber at least thirty (30) days’ prior notice of any changes to Layer2 Holdings’ marketing requirements that add material new limitations to Marketing Materials, unless a shorter time is necessary in Layer2 Holdings’ discretion, including to comply with Applicable Law or any governmental authority.

2.18.3. Upon approval by Layer2 Holdings, 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 Holdings for re-review and approval. Notwithstanding the above, Layer2 Holdings reserves the right to withdraw approval for any Marketing Materials to the extent Layer2 Holdings 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 Holdings determines that such Marketing Materials could otherwise give rise to risk to Layer2 Holdings or any third party.

2.18.4. Layer2 Holdings may periodically request reviews of the Marketing Materials and marketing channels and partners then being used by Subscriber. Subscriber shall cooperate with Layer2 Holdings in such review.

2.18.4 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.

2.19. Third Party Sender. If Subscriber is a Third Party Sender, as defined in the rules, guidelines, and/or bylaws of the National Automated Clearinghouse Association (“NACHA” and the rules, guidelines and bylaws, “NACHA Rules”), Subscriber agrees to the additional terms and conditions set forth in Schedule B (the “Third Party Sender Addendum”).

2.20. Security Procedures. Subscriber covenants and agrees to comply with and utilize the security procedures and protocols set forth in Schedule C (the “Security Procedures”), which may be updated or modified by Layer2 Holdings from time to time. Subscriber agrees that the Security Procedures, including any code, password, personal identification number, user identification technology, token, certificate, or other element, means, or method of authentication or identification used in connection with the Security Procedures, are commercially reasonable security procedures under Applicable Law, including for the initiation of ACH entries and a responsible method of providing security against unauthorized ACH entries. Subscriber acknowledges and agrees that the Security Procedures are not designed to prevent errors in the transmission or content of communications or transactions initiated by Subscriber, and that Subscriber bears sole responsibility for detecting and preventing such errors.

2.21. Nested Payments Prohibition. Subscriber covenants and agrees that neither it nor any End User will not facilitate Nested Payments in connection with any services provided by Layer2 Holdings. “Nested Payments” means (a) a payment or payment instruction provided by Subscriber or End User (or any party acting on behalf of any such party) (i) that relates to more than one underlying transaction or party; (ii) where, in the case of receipt of funds, the ultimate beneficiary of the transaction is not the Subscriber or End User; or (iii) where, in the case of sending of funds, the funds do not belong exclusively to the Subscriber or End User; (b) any event in which Subscriber or End User provides access to Layer2 Holdings’ services hereunder or under a Customer Agreement to another financial institution (including non-bank financial institution, whether licensed or unlicensed). Subscriber shall ensure that any transaction for which Layer2 Holdings settles or processes under this Agreement or in connection with an End User transaction must be conducted for the benefit of and by only Subscriber or End Users, unless otherwise approved in writing by Layer2 Holdings. Subscriber may not offer any Layer2 Holdings’ services to, or use Layer2 Holdings services in connection with providing its services to, any financial institution (including non-bank financial institution, whether licensed or unlicensed), except as approved in writing by Layer2 Holdings.

2.22. Pooled Account Prohibition. Subscriber may not use, and shall ensure no End User uses, any Layer2 Holdings’ services provided hereunder or under the Customer Agreement to pool funds of more than one Person. Each account provided to Subscriber or End User by Layer2 Holdings may only be used by such Subscriber or End User (as the case may be) and may not used to pool funds of any other Person or use to facilitate payments on behalf of multiple customers, except as permitted, in writing, by Layer2 Holdings.

2.23. Prohibited Transactions. Subscriber shall not, and shall ensure End Users do not, without Layer2 Holding’s prior approval, use any Layer2 Holdings’ services hereunder or under the Customer Agreement to engage in a Prohibited Activity, or authorize or deliver any payment instruction related to a Prohibited Activity. “Prohibited Activity” means any activity Layer2 Holdings designates, from time to time and in writing, as prohibited.

  1. PROFESSIONAL SERVICES.

3.1. Statements of Work. Subscriber may elect to have Layer2 Holdings 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 Holdings’ 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.

3.2. Ownership of Deliverables and Work Product. Unless otherwise set forth in a Statement of Work, Layer2 Holdings 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 Holdings 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.

  1. FINANCIAL TERMS; AUDITS.

4.1. 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.

4.2. Taxes.

4.2.1. 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 Holdings’ net income, which shall be paid by Layer2 Holdings), the costs of which such taxes and duties shall be invoiced by Layer2 Holdings and paid by Subscriber in accordance with Section 4.3.

4.2.2. If the Subscriber is required by or under any laws or regulations to make any withholding or deduction, Layer2 Holdings 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 Holdings as is necessary to ensure that Layer2 Holdings 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.

4.3. Payments. Unless otherwise provided in an Order Form, Layer2 Holdings shall invoice Subscriber for the applicable Fees monthly in arrears in United States Dollars, and Subscriber authorized Layer2 Holdings to debit the bank account designated by Subscriber from time to time via internal transfer or ACH within seven (7) business days 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 Holdings 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 Holdings. If Subscriber disputes any invoice or payments due hereunder, Subscriber shall notify Layer2 Holdings within sixty (60) days of delivery of such invoice or assessment or notice of such payments. Failure to notify Layer2 Holdings in writing of any dispute regarding an invoice or payment within sixty (60) days of receipt or notice thereof waives Subscriber’s right to dispute such invoice.

4.4. 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. Layer2 Holdings 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.

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

4.6. Audits.

4.6.1. Layer2 Holdings 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, its facilities, 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.

4.6.2. Subscriber agrees to cooperate with any examination, inquiry, audit, information request, site visit or the like, which may be required or requested by Layer2 Holdings or any governmental authority with audit examination or supervisory authority over Layer2 Holdings. Subscriber will provide all information requested by Layer2 Holdings 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 Holdings 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 Holdings 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.

4.6.3. 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.

  1. TERM AND TERMINATION.

5.1. 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.

5.2. Termination; Suspension.

5.2.1. 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.

5.2.2. 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.

5.2.3. In addition, Layer2 Holdings shall have the right to suspend, modify or terminate the provision of any of its Services or this Agreement as Layer2 Holdings 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 foregoing circumstances. Layer2 Holdings shall have the right to suspend, modify or terminate the provision of any of its Services or this Agreement in the event that Fortress terminates or suspends Subscriber’s or an End User’s right to access or use the Fortress Services or Fortress Account.

5.2.4. Layer2 Holdings 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 Holdings 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 Holdings, 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.

5.3. Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement: (i) Subscriber shall pay Layer2 Holdings 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.

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

5.5. 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”).

  1. CONFIDENTIALITY AND DATA.

6.1. 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 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 Holdings (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.

6.2. 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).

6.3. 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.

6.4. 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 insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.

6.5. Use of Data. Notwithstanding anything to the contrary contained in this Agreement, Layer2 Holdings 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 Holdings the rights granted herein to use such data in accordance with this Agreement. Subscriber acknowledges that Layer2 Holdings 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 Holdings does not constitute End User Data.

6.6. 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.

6.7. 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 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 Holdings shall have final approval over any notice to End Users regarding any such incident, such approval not to be unreasonably withheld, conditioned or delayed.

6.8. 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.

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

7.1. 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.

7.2. Representations and Warranties of Layer2 Holdings. In addition to the representations and warranties set forth in Section 7.1, Layer2 Holdings represents and warrants that: (i) Layer2 Holdings 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 Holdings 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 Holdings 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.

7.3. 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.

7.4. 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.

  1. INDEMNIFICATION.

8.1. Indemnification by Layer2 Holdings. Subject to Section 8.2, Layer2 Holdings 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 Holdings’ fraud, gross negligence, or willful 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.

8.2. Exceptions to Layer2 Holdings Indemnification Obligations. Layer2 Holdings 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 Holdings; (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 Holdings; or ; or (iv) any action taken by Layer2 Holdings 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 Holdings.

8.3. Infringement Claims. In the event that Layer2 Holdings reasonably determines that the Platform is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party rights, Layer2 Holdings 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 Holdings on commercially reasonable terms, Layer2 Holdings 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 Holdings’ sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.

8.4. Indemnification by Subscriber. Subscriber shall defend, indemnify, and hold harmless Layer2 Holdings and its officers, directors, managers, and employees (each, a “Layer2 Holdings 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 misappropriate any third-party Intellectual Property Rights; (iv) arising from any Authorized Users’ or End Users’ access to, and use of, the Account, Platform and/or Front End, including any transaction initiated or effectuated by or on behalf of an Authorized User or End User; (v) arising from Subscriber’s or End User’s breach of any Custodian Agreements; (vi) arising from Subscriber’s provision of End User Data to Layer2 Holdings 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.

8.5. 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 Layer2 Holdings 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.

  1. LIMITATION OF LIABILITY.

9.1. 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 HOLDINGS 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 HOLDINGS HAVE ANY LIABILITY WITH RESPECT TO ANY SUCH ACTION TAKEN AT SUBSCRIBER’S INSTRUCTION, UNLESS DUE TO LAYER2 HOLDINGS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9.2. Limitation of Damages. SUBJECT TO SECTION 9.3, LAYER 2 HOLDINGS’ 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 HOLDINGS BY SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

9.3. 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.

  1. GENERAL PROVISIONS.

10.1. 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.

10.2. 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.

10.3. 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 Holdings 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.

10.4. Publicity. During the Term, Layer2 Holdings 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 Holdings 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 Holdings 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.

10.5. 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.

10.6. 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. 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.

10.7. Modification. Layer2 Holdings may modify all or any part of this Agreement from time to time, in which case Layer2 Holdings 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 Holdings’ notice to Subscriber. If Layer2 Holdings 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.

10.8. 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.

10.9. 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.

10.10. 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.

SCHEDULE A

SUPPORT SERVICES

  1. SCOPE

This Schedule A is entered into in connection with the PLATFORM AGREEMENT (the “Agreement”) to which it is attached. Layer2 Holdings agrees to use commercially reasonable efforts to provide the support services stated herein with respect to the production version of the Platform (the “Support Services”) to Subscriber, but not to any End Users, in connection with the Services.

  1. DEFINITION

Any capitalized term used but not otherwise defined in this Schedule A shall have the meaning assigned thereto in the main body of the Agreement.

2.1. “Actual Uptime” means the aggregate amount of time in the calendar quarter within Scheduled Uptime that is not Downtime.

2.2. “Availability” means the Actual Uptime of the Platform expressed as a percentage of the Scheduled Uptime for the Platform (i.e., Availability % = (Actual Uptime/(Scheduled Uptime - Maintenance Downtime)) x 100) measured on a monthly basis in hours.

2.3. “Error” means any failure of the Platform to comply in all material respects with the Documentation and/or comply with the service level requirements set forth in this Schedule A.

2.4. “Error Correction” means either a modification to the Platform that causes it to conform in all material respects to the Documentation, or a Workaround.

2.5. “Critical Error” shall mean an Error in the Platform that causes the Platform to be completely unavailable to at least fifty percent (50%) of the Authorized Users and End Users and no Workaround exists.

2.6. “Medium Error” shall mean an Error in the Platform that causes the performance of the Platform to be materially degraded for at least fifty percent (50%) of the Authorized Users and End Users and no Workaround exists.

2.7. “Low Error” shall mean an Error in the Platform that does not rise to the level of a Critical or a Medium Error.

2.8. “Downtime” means an interruption of thirty (30) minutes or more, that is not caused by any act, omission, system, product or service of Subscriber or any of its service providers, commencing from the time a Designated Contract provides Layer2 Holdings notice of such Downtime pursuant to Section 4.4 below, during which ten percent (10%) or more of Authorized Users are unable to access and use the Platform, in each case as measured in Section 10 below (each, an “Interruption”). For the avoidance of doubt an interruption of fewer than thirty (30) minutes shall not count as an Interruption or as Downtime when calculating Availability.

2.9. “Maintenance Downtime” means those time frames during which Layer2 Holdings may perform scheduled routine systems maintenance, as set forth in Section 9 below.

2.10. “Regular Business Hours” means 8AM Eastern Time to 8PM Eastern Time, Monday through Friday, excluding local, state, and federal holidays observed by Layer2 Holdings.

2.11. “Resolution” means the Error Correction or an answer to an inquiry has been delivered to Subscriber.

2.12. “Response Time” means the time required for Layer2 Holdings personnel to respond to Subscriber confirming receipt of Error notification and informing Subscriber if additional information is needed to proceed with analysis.

2.13. “Scheduled Uptime” shall mean 99% of the time during any month, excluding Maintenance Windows.

2.14. “Support Ticket” means the logging of a service-impacting condition by the Layer2 Holdings operations center on behalf of Subscriber.

2.15. “Supported Environment” means the prescribed hardware and operating system configurations for the Platform as set forth in the Documentation.

2.16. “Workaround” shall mean a change in a procedure or routine that, when observed in the regular operation of the Platform, eliminates any material adverse effect on Subscriber of the Error without imposing additional expense or an unreasonable burden upon Subscriber.

2.17. “Designated Contacts” means those Subscriber employees described in Section 4.3 below and previously designated by Subscriber as authorized contacts to report, discuss, and resolve issues contemplated by this Schedule A. Subscriber may modify its list of Designated Contacts upon written notice to Layer2 Holdings.

  1. PERFORMANCE STANDARDS

Layer2 Holdings agrees to use commercially reasonable efforts to meet the performance standards set forth in this Schedule A (the “Performance Standards”).

Performance Standards – Services

  1. SUPPORT AND PROBLEM RESOLUTION

4.1. Contact Methods. Contact for errors.

4.2. General Inquiries. Subscriber may contact Layer2 Holdings support (via email or telephone 1800 270 8770, press 2) during Layer2 Holdings’ Regular Business Hours with general inquiries (including inquiries relating to the setup, configuration, and management) and for general tech-to-tech support.

4.3. Designated Contacts. Subscriber shall be allowed up to six (6) Designated Contacts, and one of the Designated Contacts must be identified as the administrator for Subscriber. Subscriber may change a Designated Contact and/or administrator from time to time upon prior notice to Layer2 Holdings.

4.4. Error Reporting. If Subscriber believes that an Error has occurred, Subscriber must initiate a Support Ticket using the Service Desk Portal Entry. For all Support Tickets, Subscriber’s Designated Contacts must include for each Error: (i) a general description of the Error and the proposed severity level, which shall be designated by Subscriber reasonably and in good faith; and (ii) a reproducible test case or operational information (error message, debug log output, etc.). Subscriber shall supply Layer2 Holdings with any and all information as is reasonably requested by Layer2 Holdings and as is available to Subscriber that is necessary to respond to the inquiry. In the event Subscriber does not promptly supply the information described above after Layer2 Holdings’ initial request, the calculation of the Response Time shall be suspended until Subscriber supplies such information, and shall re-commence at such time as Subscriber supplies such information.

4.5. Layer2 Holdings Response. Layer2 Holdings’ response shall consist of: (i) an acknowledgement of receipt; and (ii) a tracking number. If there is a disagreement as to the severity level of a particular Error, the issue shall be escalated to a designated technical lead for Layer2 Holdings and the designated Subscriber technical representative who shall discuss the business impact on Subscriber. The Parties shall undertake reasonable efforts to agree on the severity level of Errors, however, absent an agreement between the Parties, the final determination of the severity level of Errors shall be made by Layer2 Holdings at its sole, but reasonable, discretion.

  1. SUBSCRIBER RESPONSIBILITIES

Subscriber shall be and remain responsible for the following:

5.1. Providing first-level support to all Authorized Users and End Users;

5.2. Complying with the specifications of the Supported Environment;

5.3. Allowing Layer2 Holdings access to the Subscriber environment for support purposes. Access shall be remote or on-site, as necessary and as reasonably requested by Layer2 Holdings. Access shall be permitted under direct control of Subscriber during business hours; and

5.4. Providing Layer2 Holdings with such information, specifications, or other information as may reasonably be requested and required by Layer2 Holdings and as may be reasonably available to Subscriber to properly respond to the inquiry in a timely fashion

  1. RESPONSE TIMES

Layer2 Holdings shall use commercially reasonable efforts to meet the following Response Times for Support Tickets properly submitted by Subscriber as set forth in the table below:

Response Expectation Table

  1. EXCLUSIONS

7.1. Response Time targets apply only to those Support Services within the scope as set forth in Section 1 of this Schedule A, and do not apply to the Maintenance Window, emergency maintenance, or Subscriber-requested service interruptions or to any use of the Platform by Subscriber, Authorized Users, or End Users not consistent with the Supported Environment.

7.2. Measurement of outages shall be conducted only in accordance with the procedures set forth herein. Under no circumstances shall any tests (including, but not limited to, PING tests) performed by or on behalf of Subscriber, Authorized Users, or End Users be recognized by Layer2 Holdings as valid measurable criteria for the purposes of this Schedule A.

7.3. Layer2 Holdings shall not be liable or responsible for Errors or other issues with the Support Services in connection with:

7.3.1. Non-production environments;

7.3.2. Support Tickets erroneously opened by Subscriber;

7.3.3. Accounts provided to Subscriber for testing or development purposes;

7.3.4. Support Tickets opened by Subscriber for service monitoring purposes only;

7.3.5. Support Tickets related to Subscriber maintenance or configurations or arising from the negligence, acts, or omissions of Subscriber, Authorized Users, or End Users;

7.3.6. Errors arising from problems with technology or services provided to Subscriber by third parties, including, without limitation, Custodians;

7.3.7. The Platform being serviced or modified by anyone other than Layer2 Holdings or by a third party authorized by Layer2 Holdings;

7.3.8. Force Majeure Events; or

7.3.9. Support Tickets requesting the execution of day-to-day operational processes or data investigation for which Layer2 Holdings has provided self-serve tools through the Platform.

  1. MAINTENANCE DOWNTIME

The Maintenance Downtime shall be no more than twenty-four (24) hours total in any calendar month, unless previously agreed by the Parties, and Layer2 Holdings shall use commercially reasonable efforts to conduct such maintenance during off-peak hours for Subscriber.

Layer2 Holdings reserves the right to conduct unscheduled maintenance at any time if it believes in good faith that doing so is necessary to protect the security and/or integrity of the system or to safeguard any data. Layer2 Holdings shall use commercially reasonable efforts to provide Subscriber at least twenty-four (24) hours advance written notice of any such unscheduled maintenance, and will use commercially reasonable efforts to restore service as rapidly as possible in such a situation. For the avoidance of doubt, any unscheduled maintenance performed pursuant to this Section 9 shall be considered Maintenance Downtime.

  1. MEASUREMENT AND REPORTING

Subscriber shall use the necessary and appropriate measuring and monitoring tools and procedures to measure the Availability, and promptly report any alleged deficiencies to Layer2 Holdings. Subscriber will be given access to statuspage.io, which will have Downtime and Availability information.

  1. ENVIRONMENTS

Layer2 Holdings will provide the Subscriber with access to two environments throughout the duration of the Agreement. Data initiation or migration will be the responsibility of the Subscriber.

● Production

● Testing environment (Non production)

SCHEDULE B

THIRD PARTY SENDER ADDENDUM

The following terms and conditions apply to Subscriber’s access and use of the Services if Subscriber is a Third Party Sender (as defined in the NACHA Rules).

  1. Subscriber shall be bound by and comply with the NACHA Rules.
  2. Subscriber acknowledges that its ability to transmit ACH entries on behalf of End Users is subject to (i) the applicable bank’s initial and ongoing approval of Subscriber and its End User’s use of the applicable Services, (ii) receipt by the applicable bank of all required and properly executed addenda, forma, authorizations and such other information as the applicable bank may request from time to time; and (iii) Subscriber’s compliance with this Agreement, the NACHA Rules and all Applicable Laws.
  3. Subscriber authorizes the applicable bank to originate ACH entries on behalf of End Users to receiver accounts.
  4. Subscriber authorizes the applicable bank to register Subscriber with NACHA as a Third Party Sender and to disclose all information required by NACHA to complete and maintain such registration.
  5. Subscriber will not use the applicable Services as a Third Party Sender on behalf of any nested Third Party Sender without the applicable bank’s prior written approval, and, in connection with such approval, Subscriber will provide such bank with all additional information and documents requested by such bank and that bank may require Subscriber to execute additional agreements or addenda.
  6. Subscriber will have procedures in place to identify and monitor End User transactions for activity that may be illegal, fraudulent or otherwise prohibited under this Agreement, the NACHA Rules or Applicable Law, and shall promptly notify the applicable bank of any activity that it has reason to suspect may be a violation or attempted violation of law, including but not limited to money laundering, fraud, financial exploitation of elderly persons or persons with a disability, the Electronic Funds Transfer Act and Regulation E, Article 4A of the UCC and unfair, deceptive or abusive acts or practices. Subscriber will cooperate with the applicable bank and provide information and documents at such Bank’s request to enable it to investigate such activity and comply with Applicable Laws.
  7. Subscriber will establish, implement and update, as appropriate, policies, procedures and systems regarding initiation, processing and storage of ACH entries that are designed to protect: (a) the confidentiality and integrity of protected information until its destruction; (b) against anticipated threats or hazards to the security or integrity of protected information until its destruction; and (c) against unauthorized use of protected information that could result in substantial harm to a natural person, in accordance with the NACHA Rules. Such policies, procedures and systems must include controls that comply with Applicable Law on access to all systems used by Subscriber to initiate, process and store ACH entries. If Subscriber’s ACH origination or transmission volume exceeds 2 million entries annually, Subscriber will protect account numbers used in the initiation of entries by rendering them unreadable at rest and in transit when stored electronically.
  8. Subscriber is solely responsible for determining if the titling and records of a respective settlement account are sufficient to permit the pass-through of FDIC insurance under Applicable Law.
  9. For each ACH entry and file transmitted by Subscriber to the applicable bank on behalf of an End User, Subscriber represents and warrants that Subscriber: (a) will perform all of its duties as a Third Party Sender in accordance with NACHA Rules; (b) will pay the applicable bank for any credit entries it originates and for any debit entries returned by a financial institution; (c) will establish exposure limits for its End Users, in addition to the exposure limits the applicable bank places on Subscriber; (d) will review End User exposure limits on a periodic basis and modify them as needed; (e) will actively measure exposure limits when processing ACH entries on behalf of each End User; (g) will ensure it has established and implemented procedures for acting upon ACH entries and files that exceed exposure limits and for handling exceptions; (h) will ensure that its procedures for collecting and monitoring exposure limit information do not impede normal file processing; (i) will not submit ACH entries that violate Applicable Law; (j)shall not disclose, and will ensure that each End User does not disclose, a receiver’s account number or routing number to any third party for such third party’s use in initiating a separate entry; (k) shall not use the Service on behalf of an End User who is a “foreign shell bank” as defined in 31 CFR 1010.605, as amended from time to time; (l) shall not market any new service or product to its End Users, for which the applicable bank is the originating depository financial institution without first entering into a separate agreement signed by both Subscriber and the applicable bank; (m) shall obtain all consents and authorizations required for ACH entries under the NACHA Rules and shall retain such consents and authorizations for no less than two (2) years after they expire; Subscriber agrees to produce requested consents and authorizations within three (3) Business Days of the applicable bank’s request; (n) will: (i) conduct, or has conducted, an audit of its compliance with the NACHA Rules no less frequently than annually; (ii) conduct, or have conducted, an assessment of the risks of its ACH activities; (iii) monitor the origination and return activity of its End Users as originators across multiple settlement dates; (iv) enforce restrictions on the types of ACH entries that may be originated by its End Users; and (v) enforce any exposure limit set by Subscriber or the applicable bank, and warrants that it is legally able to do so; (o) is hereby jointly and severally liable with each respective End User for the retention and delivery to the applicable bank or the receiving depository financial institution of any records, documentation or data regarding records of authorizations of ACH entries, copies of items, and copies of eligible source documents, as required by the NACHA Rules; and (p) regarding unauthorized entry, administrative or overall return rates, (i) Subscriber will provide, within five (5) calendar days, all information requested by the applicable bank in order for such bank to respond to a NACHA inquiry regarding Subscriber’s or any End User’s unauthorized entry, administrative, or overall return rate, and (ii) if Subscriber or any End User’s unauthorized entry, administrative, or overall return rate exceeds the applicable return rate threshold, Subscriber will cooperate with the applicable bank in creating a detailed plan and timeline for reducing the applicable return rate to a rate below the threshold, and to reduce the return rate to below the threshold within thirty (30) calendar days after such bank’s receipt of NACHA’s written request for information; Subscriber and/or End User, as applicable, will maintain the applicable return rate below the threshold for at least the time required by the NACHA Rules.
  10. Subscriber will provide the applicable bank with a list of all End Users on whose behalf it will use the applicable Services prior to submitting any ACH entry on behalf of an End User. Such list must contain the name of each End User, each End User’s principal office address and taxpayer identification number, and such other information as requested by the applicable bank from time to time. Subscriber must update such list and submit the updated list to the applicable bank each time it adds a new End User, removes a End User, or changes End User information included in the list. Before Subscriber can originate ACH entries for a new End User, but not less than ten (10) Business Days prior to originating entries for a particular End User, Subscriber must notify the applicable bank of its intent to onboard a new End User and provide such bank with any information reasonably necessary to identify each End User. Failure to notify the bank of any new End Users may result in processing delays or even rejection of entries. The applicable bank shall have the right, in its sole discretion, to refuse to accept ACH entries from any such End User.
  11. Subscriber shall ensure that each End User has access to a current version of the NACHA Rules.
  12. Subscriber will provide a copy of all standard forms it uses for End User agreements to the applicable bank and shall promptly provide to such bank notice of any material change to any such forms it enters into with an End User. Such End User agreements must be approved by the applicable bank and satisfy all of the requirements of the NACHA Rules and this Agreement; provided, that such bank’s approval of the form to be used by Subscriber shall not be relied upon as confirming that the End User agreement complies with Applicable Law, the NACHA Rules, and this Agreement.
  13. Before permitting an End User to originate any ACH entry through Subscriber of the applicable bank, Subscriber will enter into a written agreement with such End User that includes a provision that: (a) binds the End User to and requires compliance with the NACHA Rules and Applicable Law, and includes a right of the applicable bank and Subscriber to terminate or suspend such agreement immediately for End User’s breach of the NACHA Rules or Applicable Law; (b) requires End User to assume the obligations and make the representations and warranties of an originator under the NACHA Rules; (c) requires End User to receive and maintain proper authorization from the receiver for each ACH entry transmitted on behalf of End User; (d) requires End User to conduct an assessment of the risks of its ACH activities as required by the Nacha Rules; (e) requires End User to authorize Subscriber and the applicable bank to originate entries on its behalf to accounts of receivers; (f) prohibits End User from originating entries that violate U.S. law; (g) sets forth restrictions on the types of entries End User may originate; (h) establishes an exposure limit for End User and requires procedures for Subscriber to review and adjust, as needed, End User exposure limit; (i) requires End User to pay the applicable bank for any credit entries it originates and for any debit Entries returned by a receiving depository financial institution, to the extent that such bank does not receive payment from Subscriber, and makes such bank a third party beneficiary of such provision; (j) requires End User to comply with the same security requirements, including encryption of electronic ACH data, that Subscriber is subject to under the NACHA Rules; (k) allows Subscriber and the applicable bank to regularly audit End User for compliance with the NACHA Rules, the terms and conditions of the Agreement with the End User, and Applicable Laws; (l) requires End User to be responsible for the retention and delivery to the applicable bank or the receiving depository financial institution of any records, documentation or data regarding authorizations of ACH entries, copies of items, and copies of eligible source documents, as required by the NACHA Rules; (m) regarding unauthorized entry, administrative, or overall return rates, (i) End User will provide, within five (5) calendar days, all information requested by the applicable bank in order for such bank to respond to a NACHA inquiry regarding End User’s unauthorized entry, administrative, or overall return rate; and (ii) if End User’s unauthorized entry, administrative, or overall return rate exceeds the applicable return rate threshold, End User will cooperate with Subscriber and the applicable bank in creating a detailed plan and timeline for reducing the applicable return rate to a rate below the threshold, and to reduce the return rate to below the threshold within thirty (30) calendar days after such bank’s receipt of NACHA’s written request for information; End User, will maintain the applicable return rate below the threshold for at least the time required by the NACHA Rules; (n) binds the End User to other provisions between Subscriber and the bank in this Agreement, that are applicable to End User; and (o) otherwise meets the requirements of the NACHA Rules.
  14. Prior to entering into an agreement with an End User, Subscriber must utilize a commercially reasonable method to verify the identify of an End User and its principals and shall have conducted an investigation appropriate to the degree of risk associated with the End User and in accordance with the applicable bank’s due diligence requirements, including, as deemed necessary, physical inspection of the End User’s premises, its data security and customer identification processes, and it shall have verified through such investigation that End User conducts a legal bona fide business operation and has the proper facilities, equipment, and security controls, and, where necessary, licenses and permits to do business. As part of its due diligence review, Subscriber is responsible for confirming that its customer not a Third-Party Sender under the NACHA Rules. Subscriber shall be responsible for providing the applicable bank with any information such bank reasonably deems necessary to identify each End User, including a End User’s beneficial owners as applicable. Subscriber is obligated to provide the requested information within two (2) Business Days after receiving the applicable bank’s request.
  15. Subscriber will maintain a separate settlement account(s) for its End Users. Subscriber will not commingle End User funds with Subscriber funds.
  16. Subscriber will be responsible for establishing, maintaining, and implementing policies and procedures to ensure that effective due diligence is performed by Subscriber (or its designee) on each End User to minimize the credit and NACHA Rules compliance risk that may arise with each End User. Subscriber shall also conduct periodic audits of its End Users to: (a) ensure each End User’s compliance with the NACHA Rules as an originator, (b) monitor each End User’s credit-worthiness as an originator, and (c) monitor Subscriber’s exposure relative to each End User and relative to Subscriber’s exposure across multiple settlement dates.
  17. Subscriber shall also establish, maintain, and implement policies and procedures to ensure that effective due diligence is performed by Subscriber on each End User at onboarding and periodically thereafter to minimize the compliance and legal risk, and related reputation risk that may arise due to an End User’s failure to comply with Applicable Laws.
  18. Subscriber will provide all information requested by the applicable bank to register Subscriber with NACHA, and such information shall be provided within two (2) Business Days of such bank’s request. Subscriber agrees to promptly provide such bank such information as and in the form such bank may request in connection with its ongoing underwriting and approval process. Subscriber shall provide all information requested by the applicable bank in order for it to respond to a NACHA inquiry. Subscriber shall promptly notify the bank of (i) any change in Subscriber’s name or form of business organization, (ii) any material adverse change in Subscriber’s financial condition or operations; and (iii) any action, suit, litigation, proceeding, or written complaint or criticism directed at Subscriber relating, directly or indirectly, to the ACH entries transmitted through the Service.
  19. In the event a report of possible rules violation is received by the applicable bank, Subscriber will be notified and, if fees or penalties are incurred by such bank due to the violation, Subscriber will promptly pay such fees or penalties without further demand or notice.
  20. Subscriber shall be liable to the applicable Bank and shall indemnify and hold it and its affiliates and their respective officers, directors, employees and agents harmless from and against: (i) any and all fees, fines and/or penalties imposed on the bank by NACHA, or a court or government agency, resulting from or arising out of any act or omission of Subscriber, End User or any person or entity acting on Subscriber’s behalf, under or in connection with this Agreement; and (ii) any losses resulting from or arising directly or indirectly out of: (a) Subscriber’s failure to perform its obligations under the NACHA Rules or comply with Applicable Law, (b) any breach of any of the warranties, representations, and agreements set forth in this Agreement and the NACHA Rules; and/or (c) any other act or omission of Subscriber, End User or any person or entity acting on the Subscriber’s behalf, under or in connection with this Agreement.

SCHEDULE C

SECURITY PROCEDURES

Subscriber is responsible to strictly establish and to maintain procedures to safeguard against unauthorized transactions. Subscriber warrants that no End User will be allowed to initiate transfers in the absence of proper supervision and safeguards, and agrees to take reasonable steps to maintain the confidentiality of the security procedures and any passwords, codes, security measures, and related instructions provided by Layer2 Holdings. If Subscriber believes or suspects that any such information has been accessed by an unauthorized individual, Subscriber will verbally notify Layer2 Holdings immediately, followed by written confirmation. The occurrence of such notification will not affect any transfers made in good faith by Layer2 Holdings prior to the notification and within a reasonable time period to prevent unauthorized transfers.

Data Security:

Limiting access and securely storing transaction data used in the routing and settlement of transactions is a critical data security precaution. Subscriber’s ability to limit access to production data can be done through commercially available software products. Access can be limited to specific programs, user IDs, or read-only or read-and-edit-only access functionality. Files can also be transmitted between participants using the following data protection methods: encryption and authentication.

Encryption is a process of scrambling data content through hardware or software in order to protect the confidentiality of a file’s contents. This information should remain encrypted using commercially reasonable procedures and must be transmitted using security technology.

Authentication is a process of ensuring that files and data content have not been altered between the originator and receiving points. Like encryption, this can be done using hardware or software to ensure data integrity.

Subscriber understands and agrees that the authenticity of any ACH file or entry transmitted using the Platform will be verified pursuant to the following security procedures:

Layer2 Holdings’ Security Procedures:

Subscriber hereby agrees to be bound by any transfer, whether or not authorized, issued in Subscriber’s name in compliance with Subscriber’s selected security procedures, as follows:

Layer2 Holdings will issue a login and password or API keys to Subscriber for an account on a secure FTP or other site or to access Layer2 Holdings’ API. Subscriber will upload the payment files to that secure site or issue payment orders via API. Any file or instruction received by the Platform in the account at the site or via API may be conclusively accepted by Layer2 Holdings as authorized by Subscriber.

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