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Cash Management – Koxa & Fides Terms

Last updated 2024

KOXA REQUIRED TERMS & CONDITIONS

Appropriate Use

Customer may not use the Platform (“Platform” means Koxa’s proprietary open banking platform) for any purpose, function or feature not described in the documentation.

Customer will not:

  • Use the Platform for any illegal or unauthorized purpose or in any manner that damages or interferes with its operation;
  • Sublicense, sell, lease (including on a service bureau basis), rent, share, transfer, or otherwise attempt to assign any part of the Platform or any other intellectual property of Koxa;
  • Remove any copyright, trademark or other proprietary rights notices contained in or on the Platform;
  • Modify, reverse engineer, decompile, disassemble or otherwise attempt to derive the source code of the Platform;
  • Use the Platform except to conduct business on its own behalf in the regular course;
  • Circumvent any security measures or use restrictions in the Platform;
  • Share any PII or PHI in any transmission sent through the Platform (e.g., memo field for a payment);
  • Refer to the Platform in the development, marketing, or sale of any competitive product; or
  • Disclose the documentation, or any other information about the Platform to any third party.

Ownership

The Platform contains valuable intellectual property rights and is propriety to Koxa, and title thereto remains with Koxa. Customer does not acquire any rights, express or implied, in the Platform or any third-party software incorporated therein other than those specified in this Agreement. All applicable rights to patents, copyrights, trademarks and trade secrets in this Platform are and shall remain with Koxa.

Limitation of Liability

To the extent permitted by law, Koxa and Bank shall have no liability for the parties for claims arising from:

  • Customer’s DebtBook solution or Customers use of DebtBook;
  • Acts or omissions of DebtBook;
  • Any data, information or instructions provided to Koxa or bank by the Customer’s DebtBook solution, including but not limited to any errors or issues associated with such data, information or instructions;
  • Unauthorized or unlawful access to, or use, loss or disclosure of any information about Customer’s account provided by Koxa to Customer’s DebtBook solution;
  • Use of the Platform that is not consistent with the documentation; or
  • Acts or omissions of Customer.

IN NO EVENT WILL KOXA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THE PLATFORM OR THIS AGREEMENT, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF KOXA ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE PLATFORM, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THREE-THOUSAND DOLLARS ($3,000). KOXA ALSO DISCLAIMS ALL LIABILITY OF ANY KIND OF KOXA’S SUPPLIERS AND LICENSORS.

No Warranties

THE PLATFORM PROVIDED BY KOXA TO CUSTOMER IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. KOXA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES WITH REGARD TO THE PLATFORM, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR COURSE OF PERFORMANCE. KOXA DOES NOT WARRANT THAT THE PLATFORM WILL OPERATE WITHOUT INTERRUPTION OR ERROR, THAT THE PLATFORM IS FREE FROM DEFECTS, THAT ANY TRANSACTIONS INITIATED THROUGH THE PLATFORM WILL BE ACCURATE OR COMPLETE, THAT KOXA WILL MAINTAIN ANY DATA WITHOUT LOSS.  KOXA DOES NOT MAKE ANY WARRANTY AS TO THE OUTPUT THAT MAY BE OBTAINED FROM USE OF THE PLATFORM. CUSTOMER ACKNOWLEDGES THAT NO WARRANTIES ARE MADE BY ANY OF VENDOR’S LICENSORS OR SUPPLIERS.  KOXA RESERVES THE RIGHT TO CHANGE, MODIFY, OR ALTER THE PLATFORM WITHOUT NOTICE, AT ANY TIME.

Third Party Beneficiary

Koxa is a 3rd party beneficiary of this Customer Agreement.

Catch All

Customer agrees to comply with any additional requirements, authorizations or other information as required.

Additional Terms

For the avoidance of doubt, Customer is limited to one hundred (100) Users. Customer will cooperate with Koxa in the provision of information pertaining to the APIs, Platform, and SaaS Services.

Customer represents and warrants that Customer will not use or attempt to use, and will instruct its authorized users not to use or attempt to use, the Services to engage in: (i) any activity in violation of any restrictions on the use of the SaaS Services set forth in the Agreement; (ii) any illegal purpose or activity; and (iii) any violation of any applicable law, rule or regulation.

FIDES ADDITIONAL SERVICES ADDENDUM

Account Reporting Services and Electronic File Transfer provided by Fides Treasury Services Ltd.

This ADDITIONAL SERVICES ADDENDUM (the “Addendum”) is an addendum to, and is hereby incorporated into the Software-as-a-Service Agreement between Fifth Asset, Inc. d/b/a DebtBook (“DebtBook”) and Customer dated as of the Effective Date of the Agreement, including any other Addenda incorporated therein (collectively, the “Agreement”).

1. DEFINITIONS.

1.1    Account Reporting Services” or “ARS Services” means the receipt, processing and forwarding of Account Data in a standardized format by DebtBook to Customer. Account Reporting Service is provided and serviced by Licensor.

1.2    “Account Data” means the account statements from Customer’s banks that DebtBook processes through its ARS Services. Account Data can be transmitted by the bank maintaining the account(s) at day-end ("End-of-day Reporting") or several times during the day ("Intraday Reporting").

1.3    “Customer” in the context of this Addendum means the customer of Fifth Asset, Inc. d/b/a DebtBook

1.4     “Contact List” has the meaning as defined in section 2.9. of this Addendum

1.5     “Electronic File Transfer Services” or “EFT Services” means the processing and forwarding of instructions from a standardized format provided by DebtBook to the Bank in the format required by the bank. EFT Services are provided and serviced by Licensor.

1.6    “Instructions” refer to any message sent from DebtBook and sent by Licensor on the Customer’s behalf to their banks.

1.7    “Eligible Personnel” has the meaning as defined in section 2.9. of this Addendum.

1.8    “Licensor” in the context of this Addendum means Fides Treasury Services Ltd.

2. SCOPE OF SERVICES.

2.1 Account Reporting Services. Subject to the terms and conditions of this Addendum and the Agreement, DebtBook hereby grants to Customer a non-exclusive, non-transferable right to access the features and functions of the ARS Services during the term of this agreement, solely by Eligible Personnel and solely as contemplated in this Addendum.

2.2 Scope of the ARS Services.  DebtBook agrees to forward Account Data, as instructed by Customer, either in the form of views on screen and/or in the form of data that can be processed electronically. DebtBook shall receive the Account Data from the bank maintaining Customer’s account as agreed and shall make it available to the Customer, after checking and re-formatting it as necessary. DebtBook shall be deemed to have carried out its contractual duties within the scope of the ARS Services by making Account Data available to Customer in the form and within the timeframe agreed. In so far as the SWIFT system or other international networks are used for the reception and transmission of messages, the Customer is aware that such networks allow the transmission of data in centers for processing or storage located in countries outside the DebtBook and/or Licensors data storage locations.. Customer is aware that any data, which is processed through data centers of SWIFT and other international networks are no longer governed under Swiss Law and that foreign law and regulations may allow or request the passing on of data to respective authorities, regulative bodies or other third parties.

2.3 Verification Service for Account Reporting Services: Before making account data available over the DebtBook solution, a number of checks of the Account Data (such as completeness of the number of statements received, completeness and consistency within each statement received) will be performed. Further appropriate action are coordinated with DebtBook and/or the bank / and or the Licensor maintaining the account(s), should any discrepancy be detected.

2.4 Obligations of the Customer for Account Reporting Services. For DebtBook to process Account Data, Customer (as the account holder) must mandate the bank maintaining the account(s) to transmit Account Data to DebtBook (or a designated third party). Customer agrees that it shall notify DebtBook in writing of each mandate to a bank at least four (4) business days prior to the start of transmission by such bank. Customer agrees that it will notify DebtBook in writing in the event of changes or cancellations of accounts that are to be available in the ARS Services within one (1) business day of any change. IMPORTANT: Customer must inform their bank to stop transmission if Customer wants to disable a reporting account.  Customer will continue to be charged for cancelled bank accounts as long as statements continue to be received from the bank.  Customer further agrees to provide to DebtBook such information, and to complete such documentation, as DebtBook may reasonably specify from time to time to establish the authorization necessary for DebtBook to provide to Customer the ARS Services.

2.5 Electronic File Transfer Services. Subject to the terms and conditions of this Addendum and the Agreement, DebtBook hereby grants to Customer (i) a non-exclusive, non-transferable right to access the features and functions of the EFT Services during the Term, solely by Authorized Personnel and solely as contemplated in this Addendum.

2.6 Scope of the EFT Services.  In respect of the Electronic File Transfer (EFT) Services, the Customer shall ensure that DebtBook is provided with the receipt of payment instructions and/or other messages, which are authorised by respective staff of the Customer as agreed between the parties. The Customer mandates DebtBook with the processing and forwarding of payment instructions and/or other messages to banks designated by the Customer in the respective payment and/or other messages. The receiving bank will then execute the respective payment to the debit of the account designated in the payment instruction and/or executes the instruction or order communicated in the respective transmitted message in accordance with the terms and conditions of the underlying agreement between the bank and the Customer. The processing and forwarding of payment instructions or messages includes but is not limited to the verification, the validation, the regulative controlling, the formatting and the encrypting of the payment instruction or message. Within the scope of the EFT Service, DebtBook will accept the payment instructions in the preferred format agreed with the Customer and will, following appropriate verification and formatting, automatically forward them to Licensor, who will in turn forward them to the designated bank in the preferred and agreed form with the bank. The form agreed with such bank shall include the format of the payment instruction and/or other messages, the usage of specific transmission protocols, the method of telecommunication and the security provisions for such instruction and/or message transmission. DebtBook will be deemed to have carried out its obligations under this Addendum in respect of the EFT Service if they have processed the instructions and/or other messages to the bank and provided a retrievable forwarding acknowledgment to be called up by the Customer through the DebtBook system or alternatively provided a notification of unsuccessful processing.

Payment instructions can only be forwarded to the bank designated in the respective payment instruction by the Customer if the account to which the payment instruction is to be debited has been agreed in advance in writing between the Customer and DebtBook.  For this purpose, the Customer will conclude an appropriate agreement with its bank in accordance with the rules specified by such bank. The bank will execute payment instructions forwarded by DebtBook to Licensor to the debit of the respective account and/or other instructions and orders in accordance with the rules it has agreed with the Customer. The Customer will inform DebtBook in writing of the conclusion of such respective agreements with the respective bank and of the designated bank accounts in the agreement if applicable.  In addition DebtBook will need to receive from the respective bank a written confirmation disclosing the exact formatting of the account number, the preferred format of the payment instruction and other related mandatory information such as communication protocol parameters. After receipt of such bank confirmation DebtBook will enable the respective account in the EFT System for the forwarding of payment instructions and/or other messages received from the Customer by way of the Licensor. If the Customer works under its own Bank or Business Identifier Code (BIC) the Customer has to conclude the respective agreements with its banks. The Customer shall provide DebtBook with copies of the respective agreements, especially any information on required formats, required communication protocols, method of telecommunication and security measures.  The Customer will notify DebtBook in writing at least two [2] business days in advance of any modifications to or deletions of Customer accounts which have previously been authorized under this Agreement by the Customer with DebtBook for debiting.

2.7 Verification Service for EFT Services: Immediately following the forwarding of the payment instruction to the designated bank, an acknowledgment is generated or, should the verification process have led to a negative result and forwarding have not been possible, an appropriate notification is generated, which shall be created automatically, accessed securely and made available for download by the Customer by way of DebtBook system.  Payment instructions and/or other messages received from the Customer which are identified as duplicate due to the identical reference number, identical debit account number, identical amount and identical message type being specified, will not be forwarded to the bank. In the case of a duplicate no notification will be sent to the Customer.  The Customer will be responsible during the Working Day for the download of acknowledgements and notifications in respect of payment instruction given under the EFT Service and for checking the accuracy and completeness of the acknowledgments and/or notifications. Any discrepancies which the Customer identified in an acknowledgment or notification must be reported to DebtBook without delay. If the Customer fails to check the acknowledgments and/or notifications from DebtBook or to notify DebtBook without delay of any discrepancies found, the forwarding and/or processing performed by DebtBook and Licensor in relation to the payment instruction will be deemed to have been approved by the Customer.  The Customer shall check with the Customer’s bank that the Customer’s payment instructions have been executed correctly and in compliance with the payment order within the scope of normal business activities, and shall contact the Customer’s bank immediately and inform DebtBook immediately if any discrepancies are detected between the payment order forwarded by DebtBook and the execution of the payment order by the Customer’s bank.   If the forwarding of a payment order temporarily fails, for example, due to the non-availability of the network used, a notification to this effect will be generated instead of the specified acknowledgments until network operation returns to normal, at which point the payment order will be forwarded to the Customer as soon as reasonably practicable and in any event within two (2) hours of network operation resuming.

2.8 Obligations of the Customer for EFT Services. For DebtBook to process transactions, Customer (as the account holder) must mandate the bank maintaining the account(s) to accept payment instructions from DebtBook (or DebtBook designated third party). Customer agrees that it shall notify DebtBook in writing of each mandate to a bank at least four (4) business days prior to the start of transmission by such bank. Customer agrees that it will notify DebtBook in writing in the event of changes or cancellations of accounts that are to be available in the EFT Services within two (2) business days of any change.

2.9 Customer’s Contact List of Eligible Personnel.  Customer shall provide to DebtBook a list (“Contact List”) designating in writing and bearing the legal signatures of the Customer’s “Eligible Personnel” for purposes of serving as main points of contact for DebtBook and obtaining queries, modification instructions, technical security information and any other related contact that may be required between Customer and DebtBook (including security-related parameters). Customer hereby authorizes DebtBook and its Licensor to provide full information to the Eligible Personnel and hereby releases DebtBook and its Licensor from any and all claims that may arise from DebtBook giving any information to such Eligible Personnel. Customer hereby warrants that it will provide current contact information of such Eligible Personnel and that it will update their contact information as necessary.

2.10 Know Your Customer Check by the Licensor. Any work performed by Licensor with regard to ARS Services and EFT Services is performed only on the basis of an agreement entered into between DebtBook and the Licensor. Any services provided by Licensor are only provided to DebtBook. DebtBook in turn provides the services in DebtBook’s own name. Therefore, Licensor shall, as permitted by mandatory law, have no liability to the Customer for any losses, claims, damages, expenses or liabilities. Nevertheless and even though the Customer has no direct contractual relationship with the Licensor (see Section 5 below), based on the fact that DebtBook provides the ARS Services and EFT Services to the Customer, the Customer is considered as a Customer of the Licensor. Licensor does only provide its services with regard to ARS Services and EFT Services to DebtBook for the benefit of those of DebtBook customers for which the Licensor has done a Know-Your-Customer assessment and which the Licensor has pre-approved as Customer for ARS Services and EFT Services.

3.  FEES AND PAYMENTS. In consideration of the Additional Services, Customer shall pay to DebtBook such fees as required  in the Agreement between DebtBook and Customer. Each Party will be responsible for its own expenses incurred in rendering performance under this Addendum.

4.  PROPRIETARY RIGHTS.  Between DebtBook and Customer, ownership of all software, services, technology or materials provided under this Addendum shall be solely owned by DebtBook and/or its Licensors, subject to the usage rights granted to Customer herein.

5.  LIMITATION OF WARRANTIES AND LIABILITY.  DEBTBOOK MAKES NO REPRESENTATIONS OR WARRANTIES ON BEHALF OF THE LICENSOR UNDER THIS ADDENDUM, AND CUSTOMER ACKNOWLEDGES THAT IN ADDITION TO ANY LIMITATION OF LIABILITY SET FORTH HEREIN, THIS ADDENDUM IS SUBJECT TO ALL DISCLAIMERS AND LIMITATIONS OR LIABILITY SET FORTH IN THE AGREEMENT. The Customer has no direct contractual relationship with the Licensor regarding the provision of ARS Services and EFT Services. The Licensor provides its services to DebtBook only. To the maximum extent permitted by applicable law: in no event shall Licensor its suppliers and subcontractors be liable for any direct, indirect, consequential, special, or incidental losses, claims, damages, including without limitation, damages for loss of business profits, business interruption, or other pecuniary loss or expenses, in any way arising out of or related to the Services or this Agreement, even if Licensor has been advised of the possibility of such damages. Any liability of Licensor shall, to the maximum extent permitted by applicable law, be completely excluded. For sake of clarity, any interest which a Customer may be obliged to pay on monies as a result of DebtBook or its Licensor’s, its supplier’s, or its subcontractor’s negligence ("Interest") shall be considered a direct damage for purposes of this Agreement. Furthermore, neither DebtBook nor its Licensors shall have any liability for loss or damage arising as a result of (i) failure of the  communication facilities of any bank maintaining any account(s), assets or any other bank business (e.g., letter of credits, foreign exchange deals) through no fault of DebtBook or that of its Licensor, suppliers, or subcontractors; (ii) a bank failing to transmit account data or failing to transmit account data in time; or (iii) a bank failing to execute, failing to execute on time or failing to execute properly a correctly forwarded and transmitted payment instruction, order or any other transaction or notification message.

6.    OBLIGATIONS OF LICENSOR WITH REGARD TO INTERNATIONAL LAWS AND REGULATIONS

6.1    Customer acknowledges that Licensor maintains the right to suspend the processing of instructions or messages      which may breach or harm international law and regulations and initiate further investigations.

6.2    To the extent legally permitted, DebtBook will be informed by Licensor Customer Services if additional information is needed to evaluate the risk of breaching or harming legal, regulatory or internal Licensor provisions, orders by authorities or national or international sanctions that Licensor is bound to observe or if Licensor will reject the processing of a transaction due to this clause 6.

6.3    DebtBook and the Customer have the obligation to provide Licensor with additional and true information on the respective instructions or messages to evaluate if a breach or harm of international laws or regulations is possible.

6.4    In any case, Licensor keeps the right to suspend and/or reject the processing of instructions or messages if the risk of breaching or harming legal, regulatory or internal Licensor provisions, orders by authorities or national or international laws or sanctions that Licensor is bound to observe, has been identified. Licensor will not process instructions or messages with the involvement of banks, corporates or individuals or goods in conjunction with countries under any economic embargo. Licensor explicitly maintains the right to reject any data transmissions in conjunction with North Korea, Cuba, Syria, Myanmar (Burma), Sudan or Iran. In this connection, the Licensor is not liable to DebtBook and/or the Customer for any resulting delays in, or rejection of, the processing of instructions or messages.

7.    NOTICES.

7.1 Any notice required to be given under this Agreement shall be in writing and shall be sufficiently served if sent to the other at the address specified below:

(a)    by hand;

(b)    or by registered priority post or recorded delivery to the other at the address specified below; or

(c)    by facsimile transmission confirmed by registered priority post or recorded delivery.

Notices sent by hand shall be deemed to be served on the day when they are actually received.  Notices sent by registered priority post or recorded delivery shall be deemed to be served three (3) Working Days following the day of posting. Notices sent by facsimile transmission shall be deemed to be served on the day of transmission if transmitted before 4.00pm on a Working Day but otherwise on the next following Working Day provided that confirmation by registered priority post or recorded delivery is sent on the same day that the notice is sent.

7.2 The Parties acknowledge and agree that notice given by e-mail shall not constitute a valid notice under this clause 7.

7.3 For the purposes of this clause the specified addresses are:

In the case of Customer: As identified on the Agreement between DebtBook and Customer.

In the case of Licensor:

Fides Treasury Services Ltd.
RM Raeffelstrasse 28 | P.O. Box
CH-8045 Zürich | Switzerland

In the case of DebtBook: As identified on the Agreement between DebtBook and Customer or such other addresses of the Party as such Party may notify to the other(s) pursuant to this clause 6.

8. TERM; TERMINATION.

8.1 Term.  This Addendum shall commence on the Effective Date and shall remain in effect until the expiry or termination of the Agreement. Upon any expiration or termination of this Addendum, Customer (i) shall immediately discontinue all use of the ARS and EFT services; (ii) shall delete all of DebtBook  Confidential Information; and (iii) shall return to DebtBook or, at DebtBook option, destroy (or make reasonably inaccessible), all copies of DebtBook Confidential Information, including all software, materials, Documentation, and additional records of DebtBook or its Licensors (iv) the Customer is no longer considered as Customer of the Licensor. Customer shall certify in writing such destruction (or rendering inaccessible) within fifteen (15) days from the termination of the Agreement.

8.2 Survival.  The provisions of Sections 4, 5, and 7.2 will survive the termination or expiration of this Addendum.