BLUEX PAY TERMS OF SERVICE

Last Modified: June 17, 2024

This BLUEX PAY TERMS OF SERVICE (including all exhibits, schedules and incorporated documents, including without limitation our Privacy Policy, and each Separate Service Conditions (as defined below) collectively, the “Agreement”), is made and entered into (i) as of the date (the “Effective Date”) Customer (“Customer” or “you”) submits your registration form on the BlueX Pay website located here https://www.bluexpay.com/ (ii) by and between BlueX Trade, Inc. (sometimes referred to herein as “BlueX Pay”, “BlueX”, “we” or “us”) and Customer.

BlueX Pay and Customer are referred to herein for convenience each as a “Party” and collectively as the “Parties”.

If there are Separate Service Conditions applicable to any BlueX Pay Service (as defined below), Customer shall comply with all such applicable Separate Service Conditions. By Customer using any such BlueX Pay Service, such Customer expressly agrees to the terms and conditions of the relevant Separate Service Conditions.

PLEASE READ THIS AGREEMENT AND EACH APPLICABLE SEPARATE SERVICE CONDITIONS CAREFULLY BEFORE ACCESSING OR USING ANY OF THE SITES AND/OR BLUEX PAY SERVICES. BY ACCESSING OR USING THE SITES AND/OR BLUEX PAY SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING ANY APPLICABLE SEPARATE SERVICE CONDITIONS. IF YOU DO NOT WISH TO BE BOUND BY SUCH TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SITES OR BLUEX PAY SERVICES AND SHOULD IMMEDIATELY CEASE SUCH USE.

BLUEX PAY MAY MODIFY THIS AGREEMENT, INCLUDING ANY SEPARATE SERVICE CONDITIONS, AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT OR MODIFIED SEPARATE SERVICE CONDITIONS ON THE SITE OR VIA EMAIL. YOUR USE OF ANY OF THE SITES AND/OR BLUEX PAY SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES. YOU AGREE TO REVIEW THE AGREEMENT AND THE APPLICABLE SEPARATE SERVICE CONDITIONS PERIODICALLY TO BE AWARE OF SUCH MODIFICATIONS AND YOUR CONTINUED ACCESS OR USE OF THE SITE AND/OR THE BLUEX PAY SERVICES SHALL BE DEEMED YOUR CONCLUSIVE ACCEPTANCE OF THE MODIFIED AGREEMENT AND THE APPLICABLE SEPARATE SERVICE CONDITIONS. IF WE REQUEST, YOU IRREVOCABLY AGREE TO SIGN A NON-ELECTRONIC VERSION OF THIS AGREEMENT.

Introduction

Our Role: The BlueX Pay services (“BlueX Pay Services”) consist of: (i) payment account boarding; (ii) payment data transmission services that help you integrate with payment processors (collectively, the “Processors”, and each, a “Processor”); and (iii) any of the individual BlueX Pay Services listed on Schedule 1 (each, a “Separate Service”). In order to allow BlueX Pay to perform the BlueX Pay Services, you hereby appoint us as your agent to deliver information and instructions on your behalf to any Processor and in some cases act as your OTI (Ocean Transport Intermediary) to deliver payments.

Neither BlueX Trade, Inc. nor any of its affiliates is a bank, payment institution, processor, or money services business. BlueX Trade, Inc. is a supplier of the BlueX Pay Services as provided under this Agreement. From time to time, in addition to this Agreement, you may be required to enter into separate contractual relationships with banks, Processors, and/or money services businesses in order to make use of some or all of the BlueX Pay Services, as further described herein.

The Processors: BlueX Pay may add or substitute Processors from time to time. Each Processor will offer services to you on its own or as an agent of one or more banks or other financial institutions in the regions BlueX Pay Services are offered (each such financial institution, a “Financial Services Provider”). Additionally, each Processor will have a contractual relationship with BlueX Pay. The processing and settlement of Transactions (as defined below) (“Payment Processing”) is carried out by one or more Processors and any of the Financial Services Providers under one or more separate processor account agreements (collectively, the “Processor Terms”). By entering into this Agreement and using the BlueX Pay Services, you also agree to enter into and be bound by the applicable Processor Terms, which will be the legal agreement between you and the Processor. BlueX Pay on behalf of the Processor, or the Processor itself, will provide you with one or more means by which you can review and agree to the Processor Terms. If you do not agree to the Processor Terms, you may not use the BlueX Pay Services, and you thereby authorize BlueX Pay to terminate this Agreement with you.

BlueX Pay will not be a party to the Processor Terms and is not liable to you in respect thereof. By entering into this Agreement and the Processor Terms, you will authorize the creation of an account with the Processor for Payment Processing (the “Processor Account”). We reserve the right to add additional Processors or to change any Processor, subject to the terms of our agreement with any such Processor. In the event we require you to enter into additional or amended Processor Terms with existing, additional or different Processors, you agree to do so in order to continue using the BlueX Pay Services. If you do not agree to do so, you may not continue to use the BlueX Pay Services, and you authorize BlueX Pay to terminate this Agreement with you. In the event of any inconsistency between this Agreement and the Processor Terms, this Agreement shall prevail, except in the event of any inconsistency between this Agreement and the Processor Terms concerning Payment Processing or the Processor Account, in which case the Processor Terms shall prevail.

Subject to the paragraph above, in order to use the payment functionality of a BlueX Pay Service, you must open an account provided by a Processor and you must accept such Processor’s terms of service and privacy policy. Any funds held in or transferred through your Processor account are held or transferred by the Processor's financial institution partners. You must be at least 18 years old to create a Processor account. You authorize BlueX to collect and share with any Processor your personal information including full name, date of birth, social security number, physical address, email address, and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Processor account through the BlueX Pay Services, and any Processor account notification will be sent by BlueX, not the Processor. BlueX will provide customer support for your Processor Account activity.

The Processor shall initially be Airwallex US, LLC (NMLS #1928093) (“Airwallex”). Airwallex shall provide payment services to Customers in the U.S. states listed on Schedule 2, where it is licensed or authorized to do business as a money transmitter. For some U.S. Customers in jurisdictions not listed on Schedule 2, Airwallex partners with Evolve Bank & Trust (member FDIC) to provide payment services. Customers in each respective state can access information on filing complaints about Airwallex’s payment services, money transmission, or currency exchange products here, and customer support here.

Additional Requirements of You: In order to utilize the BlueX Pay Services, Customer must be a business located in an approved jurisdiction listed on Exhibit A. You represent, warrant, and covenant that Customer’s entry into and performance under this Agreement will not conflict with, violate, result in a breach of any contract to which Customer is a party or any law applicable to Customer.

The BlueX Pay Services: BlueX Pay desires to make the BlueX Pay Services available to Customer in accordance with and subject to the terms of this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

Definitions and Construction. The following terms have the meanings set forth below. Certain other terms are defined elsewhere in this Agreement and are used with the meanings ascribed to them. In this Agreement, the singular includes the plural and the plural the singular; the terms “including” and “include” shall mean “including without limitation”; any gender used includes any other gender, and references to a “Section” shall mean a section of this Agreement, unless otherwise expressly provided herein. Headings and captions contained in this Agreement are for convenience of reference only. The Introduction contained herein is incorporated into, and forms a part of, this Agreement and Customer acknowledges that BlueX Pay is relying on the statements in such Introduction in entering into this Agreement.

“Application” means any Registration Application, Separate Service Application, or Transaction Application.
“Approved Transaction” means a Valid Invoice which has been submitted by either the Payer or the Biller via the BlueX Pay System and with respect to which the Payer has approved payment by selecting the “Approve” button (or similar online or automated functionality).
“Agreement” has the meaning set out in the preamble.

“Airwallex” has the meaning set out in the Introduction.

“Authorized Users” means only those employees of Customer who are designated and authorized by Customer to use the BlueX Pay Services as specified under the terms of this Agreement.

“Biller” means a Person^[a] who receives payments for Valid Invoices using the BlueX Pay Services.

“BlueX” has the meaning set out in the preamble.

“BlueX Pay” has the meaning set out in the preamble.

“BlueX Pay Services” has the meaning set out in the Introduction.

“BlueX Pay System” means a web-based application accessible at www.BlueXPay.com that is used by Fully Registered Payers and Fully Registered Billers to access the BlueX Pay Services.

“Claims” has the meaning set out in Section 15.1.

“Collateral” has the meaning set out in Section 8.4.

“Confidential Information” has the meaning set out in Section 16.1.

“Customer” has the meaning set out in the preamble.

“Customer Information” means (i) any information provided in any Application; (ii) any other information regarding Customer’s business operations, including invoices and bills of lading, that is provided by Customer to BlueX Pay or obtained by BlueX Pay in connection with this Agreement; and (iii) any information regarding the Customer’s payment status under this Agreement or regarding any Default under any Separate Service Conditions.

“Default” with respect to any Separate Service Conditions, has the meaning set out in such Separate Service Conditions.

“Effective Date” has the meaning set out in the preamble.

“Fees” means the Transaction Fees and other charges due to BlueX Pay, pursuant to this Agreement, including the fee schedule set out in Exhibit B, as modified from time to time, and each applicable Separate Service Conditions.

“Financial Services Provider” has the meaning set out in the Introduction.

“Fully Registered Biller” means a Biller who has completed the steps necessary to receive payments via the BlueX Pay System in connection with one or more BlueX Pay Services.

“Fully Registered Payer” means a Payer who has completed the steps necessary to pay a Valid Invoice via the BlueX Pay System in connection with one or more BlueX Pay Services.

“Indemnitees” has the meaning set out in Section 15.1.

“Legal Requirements” means any laws, regulations, judicial or administrative decisions, executive orders, rules or interpretations applicable to using the BlueX Pay Services in connection with Customer’s business.

“Linked Site” has the meaning set out in Section 3.3.

“Login Credentials” has the meaning set out in Section 4.9.

“Marks” has the meaning set out in Section 17.3.

“Non-Asset Based Customer” means a Customer, including an NVOCC (Non-Vessel Operating Common Carrier) or a freight forwarder, who brokers or serves as a facilitator of Transactions, but does not actually provide transport services or ship goods it owns.

“Notes” has the meaning set out in Section 16.1.5.

“OFAC” has the meaning set out in Section 4.1.

“Payer” means a Customer who pays Valid Invoices of a Biller using the BlueX Pay Services.

“Party” has the meaning set out in the preamble.

“Payment Processing” has the meaning set out in the Introduction.

“Person” means an individual or corporation, partnership, trust, incorporated or unincorporated association, joint venture, limited liability company, joint stock company, government (or an agency or subdivision thereof) or other entity of any kind.

“Processor” has the meaning set out in the Introduction.

“Processor Account” has the meaning set out in the Introduction.

“Processor Terms” has the meaning set out in the Introduction.

“Registration Application” means the online application(s) available on the BlueX Pay System that must be completed by Customer before the Customer may be approved to use the BlueX Pay System or any BlueX Pay Service.

“Related Service Providers” has the meaning set out in Section 2.2.

“Sanctions Laws ” has the meaning set out in Section 4.1.

“SDNs” has the meaning set out in Section 4.1.

“Security Incident” has the meaning set out in Section 16.3.

“Separate Service” has the meaning set out in the Introduction.

“Separate Service Conditions” means the terms and conditions applicable to each Separate Service.

“Separate Service Application” means the online application(s) available on the BlueX Pay System that must be completed by Customer with respect to provision of any Separate Service, subject to BlueX’s discretion.

“Settlement” means the payments process by which funds are disbursed to Billers on behalf of Payers, in connection with Transactions.

“Settlement Account” means the bank accounts or Wallet designated by Customer to be used for the purpose of Settlement of BlueX Pay Transactions.

“Sites” means websites or uniform resource locators owned by BlueX Trade, Inc. or any of its affiliates, including the BlueX Pay System.

“Transaction(s)” means a separately identifiable invoice or other item submitted by a Biller for payment by a Payer pursuant to the respective BlueX Pay Service.

“Transaction Application” means the online application(s) available on the BlueX Pay System that must be completed by Customer with respect to individual Transactions, subject to BlueX’s discretion.

“Valid Invoices” means a current and valid invoice (or similar statement of amount due), which is (i) not past-due, (ii) issued by a Biller, and (iii) for freight or cargo charges and related services and expenses.

“Wallet” is a Settlement Account accessible on the BlueX Pay Service but held with a Processor’s Financial Services Provider.

Customer Authorization

Verification of Information. Customer hereby authorizes BlueX Pay, the Processor or any of their designated agents, to verify the information on any Application, or submitted with respect to any BlueX Pay Service, and information concerning any corporate officer, principal, partner, or owner of Customer as requested, including for purposes of satisfying requirements under applicable law concerning “know your customer,” anti-money laundering, Bank Secrecy Act, and related matters. Customer agrees to supply requested information to BlueX Pay, the Processor or any of their designated agents to carry out the foregoing purposes, and represents, warrants, and covenants that any such information shall be true, complete, and accurate. Customer understands and acknowledges that it is responsible for ensuring the validity, accuracy, and completeness of all information, data, and instructions provided by Customer. Customer further agrees that if the information it supplies pursuant to this Section 2.1 is deemed deficient by BlueX Pay, the Processor or any of their designated agents, it will supply additional information promptly upon request. Customer agrees that BlueX Pay, the Processor, any Financial Services Provider or any of their designated agents may at their sole discretion decline to perform services under this Agreement, the Processor Terms, or any related agreement or set of terms and conditions if any of the foregoing Persons believe the information supplied by Customer pursuant to this Section 2.1 deficient, inaccurate, a violation of any of their policies or unlawful in any manner.

Authorization. Customer grants to (i) BlueX Pay (ii) each Processor, (iii) each Financial Services Provider, (iv) Customer’s trade references and bank references provided by Customer, (v) business credit service agencies, and (vi) business reporting agencies, (collectively, the “Related Service Providers”) permission and authorization to verify, receive, and obtain business and other information, including without limitation criminal background checks of Customer (including any corporate officers thereof), as part of the Related Service Providers ongoing evaluation of Customer throughout the effective period of this Agreement. Customer also grants to BlueX permission and authorization to transfer any Customer Information, including but not limited to the creditworthiness of Customer, to any Related Service Provider or other third party throughout the effective period of this Agreement.

Electronic Documents. A Customer who is executing this Agreement online will complete all Applications and this Agreement using electronic signatures which shall be as effective and binding as signing physical copies of the same.

Payer & Biller Documents. A Customer who is executing the Agreement or any documents required herein agrees and acknowledges that certain parts of this Agreement, including all Applications, must be completed electronically online on the BlueX Pay System. Customer further acknowledges that such Applications are incorporated into this Agreement and made a part hereof and are relied upon by BlueX Pay, the Processor and any of their agents in providing the BlueX Pay Services. Without limiting the generality of Section 2.1, all of the information supplied in connection with and statements made to BlueX Pay by or on behalf of Customer in such Applications shall be true and complete and accurate, whether supplied or made prior to, contemporaneously with or subsequent to the applicable Application.

BlueX Pay Services. The BlueX Pay Services are made available to Customer through the BlueX Pay System, which is composed of various applications which store, manage, deliver, download, and display information related to Transactions between Billers and Payers and the payments associated with such Transactions. Fully Registered Billers and Fully Registered Payers will access the BlueX Pay Services in accordance with this Agreement. The BlueX Pay Services are provided on an “as is” and “as available” basis, and BlueX Pay makes no warranty concerning the business results that may be obtained from use of the BlueX Pay Services nor assumes any responsibility or liability for (i) the timeliness of communications or the deletion or the failure to store payments or other data, whether or not caused directly or indirectly by BlueX Pay, or (ii) any third party’s unauthorized access to the BlueX Pay Services account and passwords through Customer.

Third Party Services. To the extent the Sites provide links or access to third party products and services, you expressly acknowledge and agree that any such third parties are intended third-party beneficiaries of this Agreement pertaining to your use of the third party products/services and will have the right to enforce this Agreement directly against you in their own names. BlueX Pay expressly disclaims any responsibility for the content of third-party sites and disclaims any and all liability resulting from your use of such sites or the services offered by such third parties.

In order to use the payment functionality of our application, you must open a "Dwolla Account" provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy. Any funds held in or transferred through your Dwolla Account are held or transferred by Dwolla's financial institution partners. You must be at least 18 years old to create a Dwolla Account. You authorize BlueX to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. You understand that you will access and manage your Dwolla Account through application, and Dwolla account notifications will be sent by BlueX, not Dwolla. BlueX will provide customer support for your Dwolla Account activity, and can be reached at www.bluexpay.com or support@bluexpay.com.

THE SITES AND THE SERVICES AVAILABLE THEREON AND/OR PROVIDED THEREFROM ARE PROVIDED ON AN “AS IS” BASIS, AND YOUR USE OF THE SITES AND THE SERVICES ARE AT YOUR OWN RISK. BLUEX PAY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. BLUEX PAY DOES NOT WARRANT THAT YOUR USE OF THE SITES WILL BE UNINTERRUPTED OR ERROR-FREE. BLUEX PAY DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE INFORMATION YOU OBTAIN FROM THE SITES, INCLUDING THE CAPABILITY, CORRECTNESS, ACCURACY, OR RELIABILITY OF THE INFORMATION. YOU EXPRESSLY ACKNOWLEDGE THAT BLUEX PAY SHALL IN NO EVENT BE HELD LIABLE FOR ANY DAMAGES, SUITS, OR CLAIMS RELATING TO THE INFORMATION OBTAINED BY YOU FROM THE SITES, OR THE USE BY YOU OF SUCH INFORMATION. NO ORAL OR WRITTEN REPRESENTATION OR ADVICE GIVEN BY BLUEX PAY WILL BE DEEMED TO CREATE SUCH A WARRANTY. BLUEX PAY MAY PROVIDE LINKS OR OTHER ACCESS TO WEBSITES MAINTAINED BY THIRD PARTIES, WHICH ALLOW A USER TO LEAVE THE SITES TO ACCESS THIRD PARTY MATERIAL OR TO INCORPORATE THIRD PARTY MATERIAL INTO THE SITE VIA “INVERSE” HYPERLINKS AND FRAMING TECHNOLOGY (A “LINKED SITE”). BLUEX PAY ASSUMES NO RESPONSIBILITY FOR THE AVAILABILITY OF SUCH THIRD- PARTY SITES OR FOR THE CONTENT, ADVERTISING, PRODUCTS, OR OTHER MATERIALS ON OR AVAILABLE ON A LINKED SITE AND THE PROVISION OF SUCH A LINK SHALL NOT BE CONSTRUED AS AN ENDORSEMENT, AUTHORIZATION, SPONSORSHIP, OR AFFILIATION WITH RESPECT TO SUCH THIRD-PARTY SITE, ITS CONTENTS, OWNERS, OR PROVIDERS.

Requirements for Use of the BlueX Pay Services

Compliance with Import and Export Laws. The BlueX Pay Services use software and technology subject to United States laws that impose export restrictions or economic sanctions on, or otherwise prohibit or penalize, dealing with the governments, nationals, Specially Designated Nationals (“SDNs”), and products and services originating from or owned and controlled by certain countries or in which such governments, nationals, or SDNs have an interest (all such laws, collectively the “Sanctions Laws”). The Sanctions Laws include the Export Administration Act of 1979 administered by the U.S. Department of Commerce and the economic sanctions regulations administered by the U.S. Treasury’s Office of Foreign Assets Control (“OFAC”). Customer warrants, for the period during which Customer utilizes the BlueX Pay Services, that it and its Authorized Users are (i) not located in or under the control of the government of a country subject to U.S. sanctions; and (ii) are not on OFAC’s SDN list or the Department of Commerce’s denied Persons list. Customer further warrants that the information, software, and technology used by the BlueX Pay Services will not be transferred, exported, or re-exported to a sanctioned country, SDN, or denied Person or otherwise used in violation of the Sanctions Laws. Customer is responsible for ensuring that any necessary licenses for its business (including import and export licenses) are obtained from the relevant governmental authority.
Compliance with Anti-Corruption/Bribery Laws. Customer shall not act in any fashion or take any action in violation of, or that creates the appearance of a violation of, or that may render BlueX Pay liable for a violation of (a) the U.S. Foreign Corrupt Practices Act, (b) the UK Bribery Act, (c) the UN Convention against Corruption, (d) the OECD Convention on the Bribery of Foreign Public Officials; and (e) any other applicable local anti-corruption laws, rules, and regulations. Specifically, Customer understands and agrees that it shall be unlawful for Customer and/or any of its officers, directors, employees, or agents to make any kind of offer, payment, promise to pay, or authorization of the payment of any money, or offer, gift, promise to give, or authorize the giving of anything of value to:

any foreign official (or foreign political party) for purposes of either influencing any act or decision of such foreign official in his or her official capacity, or inducing such foreign official to do or omit to do any act in violation of the lawful duty of such official, or securing any improper advantage, or inducing such foreign official to use his or her influence with a foreign government, or instrumentality thereof, to affect or influence any act or decision of such government or instrumentality in order to assist such Person in obtaining or retaining business for or with, or directing business to, any Person; or

any Person, while knowing that all or a portion of such money or thing of value will be offered, given, or promised, directly or indirectly, to any foreign official (or foreign political party), or to any candidate for office, for any of the prohibited purposes described above.

For purposes of this Agreement, “foreign official” means any (a) appointed, elected, or honorary official or employee of (i) a government other than the United States of America (or any political jurisdiction within the United States of America) or non-United States political party or (ii) a public international organization, or (b) Person acting in an official capacity for or on behalf of any such government, any such political party, or any such public international organization (including but not limited to the United Nations, Department for International Development, World Health Organization, or the World Bank). For purposes of this Agreement, the term “government” includes any agency, department, embassy, or other governmental entity, and any company or other entity owned or controlled by the government.

User Access. Customer shall grant access to the BlueX Pay Services only to those employees who are designated by Customer to use the BlueX Pay Services as Authorized Users.

Use of BlueX Pay Services. Customer and its Authorized Users may use the BlueX Pay Services only for purposes specified in this Agreement, as amended from time to time.

Prohibited Use. Customer may not use the BlueX Pay Services in order to transmit, distribute, store, or destroy material (a) in violation of any Legal Requirements (b) in a manner that will infringe the copyright, trademark, trade secret, or other intellectual property rights of third parties or violate the privacy, publicity or other personal rights of third parties, (c) that is defamatory, obscene, threatening, abusive, or hateful or (d) that otherwise may violate BlueX Pay’s, any Processor’s or any Financial Service Provider’s acceptable use policies.

Prohibited Conduct. Customers are prohibited from violating or attempting to violate the security of the BlueX Pay System, including, without limitation: (a) accessing data not intended for such Customer, or logging into a server or account which the Authorized User is not authorized to access; (b) attempting to probe, scan, or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host, or network; (d) sending unsolicited or unauthorized e-mails, including promotions and/or advertising of products or services; (e) inputting information which they are not authorized to input because they are neither the lawful owner of nor an authorized user of such information.
Prohibited Information. Customers are expressly prohibited from (a) providing any incomplete, false, or inaccurate biographical information, when completing any Application; (b) using any device, software, or routine to interfere or attempt to interfere with the proper working of the BlueX Pay Services or any activity being conducted on the BlueX Pay Services; (c) taking any action which imposes an unreasonable or disproportionately large load on the BlueX Pay Services infrastructure; (d) disclosing or sharing passwords with any non-authorized users or third parties or using passwords for any unauthorized purpose; (e) using or attempting to use any engine, software, tool, agent, or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the BlueX Pay System other than the search engine and search agents provided by BlueX Pay, if any, on the BlueX Pay Services and other than generally available third party web browsers (e.g., Google Chrome, Firefox, Microsoft Edge); and (f) attempting to modify, decipher, decompile, disassemble, create derivative works, or reverse engineer any of the software comprising or in any way making up part of the BlueX Pay Services.
BlueX Pay Services Customer Account and Passwords. Customer is responsible for maintaining the confidentiality of its BlueX Pay System user names and passwords and for ensuring that only Authorized Users have access to the BlueX Pay System. Customer is responsible for actions taken using the BlueX Pay System by Customer’s employees or those acting on behalf of Customer or using passwords obtained from Customer. All usernames and passwords are the property of BlueX Pay, in its sole discretion, may revoke them (or otherwise restrict Customer’s access to the BlueX Pay Services) or require Customer to change its usernames and/or passwords. You agree that the information you provide to us will be accurate and that you will keep it up-to-date at all times. Each Authorized User will be asked to create a strong password and provide a device on which to receive a multi-factor authentication code, one-time password or similar authentication token or mechanism (collectively, the Authorized Users’ “Login Credentials”). Customers are solely responsible for maintaining the confidentiality of Login Credentials, and to the extent allowed by law, you accept responsibility for all activities on your account authenticated through the Login Credentials, whether authorized or not. Customer agrees to ensure that all Login Credentials are kept confidential and secure, and Customer will not, nor permit any Authorized User to, give or make Login Credentials available, directly or indirectly, to any unauthorized individual. You acknowledge and agree that if you allow, whether through action or inaction, any Person to gain access to Login Credentials, with or without permission, you are authorizing that Person to use the BlueX Pay Services, and you will be responsible for all transactions that result from such access, even if you did not want the transactions performed, and even if they are unauthorized or fraudulent. From time to time, BlueX Pay may request that you change your password or otherwise cooperate with security protocols designed to ensure the security of the BlueX Pay Services, and you agree to comply with such requests.

Commercially Reasonable Security Procedures. You acknowledge and agree that BlueX Pay's and the Processor’s security procedures are commercially reasonable methods of verifying your identity and payment instructions, providing security against unauthorized payment instructions and fraud, and protecting your BlueX Pay and/or Processor accounts.

You agree to notify BlueX Pay and the applicable Processor immediately of any unauthorized use of your account or any other breach of security, including suspected theft or compromise. BlueX Pay will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you may be held liable for any losses incurred by BlueX Pay or another party due to someone else using your account or password. You acknowledge and agree that by providing any information to BlueX Pay which is untrue, inaccurate, not current or incomplete, BlueX Pay reserves the right to terminate this Agreement and your continued access and use of the Sites and/or the BlueX Pay Services.

To the extent allowed by law: You agree to be bound by all payment instructions or transactions initiated in compliance with BlueX Pay's security procedures and this Agreement, whether or not authorized. You agree that you will be liable for all losses or payments resulting from the theft, loss, compromise, or unauthorized use of your BlueX Pay account or Login Credentials, unless (1) you have notified BlueX Pay of possible theft, loss, compromise, or unauthorized use, and (2) we have had a reasonable opportunity to act on that notice. You will also be responsible for any losses or unauthorized payments resulting from any fraudulent or illegal compromise of your systems. You agree that you will be responsible and liable for payments or transfers containing inaccurate instructions or other errors, unless limited by law. Upon your timely report, we may, in our sole discretion, use good faith measures to attempt to reverse and recover any unauthorized or erroneous payments or transfers on your behalf, but BlueX Pay will have no responsibility, obligation, or liability in relation to such payments or transfers or any reversal or recovery attempts.

Customer Information. The BlueX Pay Services shall be provided in reliance upon Customer Information provided to BlueX Pay. Customer shall be responsible for ensuring the validity, accuracy, and completeness of all Customer Information, data and instructions provided by Customer. BlueX Pay shall not be required to act on instructions provided by Customer if BlueX Pay has a reasonable basis for believing the Customer Information provided by Customer is not accurate, or that Customer has failed to comply with this Agreement or any Legal Requirements.

Settlement; Transactions.

Settlement. Using the BlueX Pay Services, BlueX Pay will facilitate the processing and disbursement of payments through a Processor on behalf of Customers according to this Agreement. Without in any way limiting BlueX Pay’s general rights to modify this Agreement, BlueX Pay expressly reserves the right to modify any provisions related to Payment Processing as required by BlueX Pay, applicable banking rules and regulations, or Legal Requirements. In the event of a modification to this Agreement made pursuant to this Section 5.1, BlueX Pay shall provide Customer the revised Agreement with reasonable advance notice prior to its effective date.

Outstanding Transactions Following Termination. Upon termination of this Agreement for any reason, BlueX Pay shall cancel all Transactions that have not been submitted for processing.

General Authorization. Customer hereby authorizes BlueX Pay to initiate credit and/or debit entries, as applicable, from Customer’s Settlement Account(s) designated on any Application. If any funds relating to a debit Transaction are returned for any reason, Customer (whether Biller or Payer) agrees that BlueX Pay may (in addition to rights and remedies provided elsewhere in this Agreement) initiate subsequent debits or credit card charges for such Transaction amount and any corresponding Fees. Customer agrees that its failure to ensure sufficient funds are available in Customer’s Settlement Account(s) for any debit transaction, or that sufficient credit is not available on their Wallet for such a Transaction, may result in additional charges from the Processor or Financial Services Provider, and/or BlueX Pay, which amounts will be subsequently deducted from Customer’s account(s) or collected as otherwise permitted herein.

Customer will immediately provide BlueX Pay with notice of any changes to Customer’s Settlement Account(s), and Customer shall hold BlueX Pay harmless from liabilities resulting from Transactions processed using outdated or incorrect account information. The authorizations provided in Section 5.3 and this Section 5.4 shall remain in effect for a period ending on the date (i) which is thirty (30) days after this Agreement has been terminated, (ii) on which BlueX Pay has completed processing all Customer’s pending Transactions, or (iii) on which BlueX Pay has fulfilled all obligations required by then-applicable laws and regulations, including, but not limited to, NACHA regulations, whichever is latest.

Customer acknowledges that BlueX Pay is not a money services business or money transmitter and that BlueX Pay will never receive or store money or monetary value for transmission. All money and monetary value will be received, stored, and transmitted through a Financial Service Provider owned Settlement Account, including without limitation a Processor or Financial Services Provider. To the extent that BlueX Pay is construed to receive money or monetary value for transmission under any state or federal law, Biller hereby appoints BlueX Pay as its freight forwarder agent (OTI) for the limited purpose of receiving payment from Payers on behalf of the Biller. In the event that BlueX Pay does not make any such payment to Biller as described in this Agreement, Biller will have recourse against only BlueX Pay and the Processor and not against any Payer.

Valid Invoices. Customer agrees and represents to BlueX Pay that (i) only Valid Invoices will be submitted in connection with the BlueX Pay Services, and (ii) if Customer is a Payer, any and all BlueX Pay Services extended by BlueX Pay to Customer shall be applied in their entirety and exclusively to payment of Valid Invoices of Billers. Customer further agrees that it will not submit Transactions or invoices for payment with entities affiliated with Customer.

Disputes with Third Parties

Disputes after Approval. If a dispute occurs with respect to any Transaction with a third party, Customer agrees that it will settle the dispute directly with such third party and not involve BlueX Pay.

WITHOUT LIMITATION OF THE FOREGOING, BLUEX PAY IS NOT AFFILIATED WITH ANY OTHER PAYER, BILLER, CARRIER, SERVICE PROVIDER, OR THIRD-PARTY SERVICE, AND YOU ACKNOWLEDGE AND AGREE THAT ANY DISPUTE YOU HAVE WITH ANY OTHER PAYER, BILLER, CARRIER, SERVICE PROVIDER, THIRD-PARTY SERVICE, OR OTHER THIRD PARTY ARISING FROM SUCH TRANSACTION OR OTHERWISE FROM YOUR USE OF SUCH SERVICE IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE BLUEX PAY (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. BLUEX PAY WILL NOT, AND WILL NOT ATTEMPT, TO REVERSE OR OTHERWISE RECOVER ANY PAYMENT OR TRANSACTION THAT IS SUBJECT TO A BONA FIDE DISPUTE.

Lien Rights

Payer Lien Rights. Each Customer that is a Payer agrees to have sufficient funds available in its Settlement Account to (i) repay all Fees when they become due and payable; and (ii) to settle all Approved Transactions.

BlueX Pay shall have a lien on any and all goods of each Customer that is a Payer (also referred to as consignee or bill to party) in the possession (constructive, in-transit or otherwise), custody, control of such Payer, or the related Biller, to secure payment from Payer for Approved Transactions, Fees, charges, and all other amounts owed or due to BlueX Pay in connection with using any BlueX Pay Services. When the Customer is a Non-Asset Based Carrier, BlueX Pay shall have a lien on the accounts receivable from the customers of the Non-Asset Based Carrier. The subject lien may be asserted against any such goods without regard to whether the monies claimed as owed relate to the prior shipment of goods or goods currently being shipped. BlueX Pay reserves the right to foreclose and/or satisfy its lien rights by selling the goods at public auction or private sale (or collecting or selling accounts receivable of a Non-Asset Based Carrier) at the sole discretion of BlueX Pay upon proper and due notice to the Payer (or Non-Asset Based Carrier), and upon receipt of notice in accordance with these provisions, Payer will undertake to notify any other parties with a beneficial interest in the subject goods.

Biller Lien Rights. Once a Customer that is a Biller has been paid in a given Approved Transaction, such Biller agrees not to object to any notice of lien submitted by BlueX Pay in connection with BlueX Pay asserting its lien rights on any and all goods of the related Payer (also referred to as consignee or bill-to party) in the possession (constructive or otherwise), custody, control of such Biller or the related Payer, for all amounts owed or due to BlueX Pay.

Grant of Security Interest. As security for any existing and future indebtedness of Customer (whether in its capacity as a Payer or a Biller) to BlueX Pay, including claims for charges, expenses, or advances incurred by BlueX Pay in connection with any shipment or transaction of Customer, and whether or not presently contemplated by such Customer, any related Biller or Payer and/or BlueX Pay, such Customer hereby grants, assigns, transfers, conveys, pledges, and mortgages to BlueX Pay a first perfected priority security interest/lien in/upon all goods, documents of title and other property which such Customer provides for its customers and clients and which are the subject of Transactions for which Settlement services are provided hereunder (collectively, with proceeds of the foregoing, the “Collateral”). Customer expressly warrants and represents to BlueX Pay that it holds and maintains valid and perfected liens, title, and/or security interests in the Collateral by way of (as applicable): (a) carrier's and/or warehouse liens upon the Collateral under Article 7 of the Uniform Commercial Code, U.S. maritime law, and/or other applicable law; (b) consensual security interests in the Collateral under Article 9 of the Uniform Commercial Code or other applicable law; and/or (c) general and continuing liens pursuant to contractual agreements with its customers and/or its tariffs in effect governing the services provided by Customer (whether as Biller or Payer) to its customers. Customer expressly agrees that it holds the Collateral as bailee for BlueX Pay’s benefit to secure Customer’s obligations under the terms of this Agreement and that BlueX Pay shall have a security interest and a general and continuing lien on any and all Collateral, wheresoever located, in the possession, custody, or control of Customer or its agents, for any amounts owed by Customer to BlueX Pay with regard to the shipment on which the lien is claimed, a prior shipment(s) or both, and without regard to the services performed by Customer for its customer. BlueX Pay is hereby granted power of attorney to execute and file appropriate financing statements or to otherwise effect any other means of perfection of security interests pursuant to applicable law on Customer’s behalf. This lien and security interest shall be in addition to any other rights BlueX Pay has or may acquire under other agreements, conventions, tariffs, and/or applicable laws, and shall survive delivery or releases of any Collateral. In the event of any failure to fund or in the event of a non-sufficient funds notification or failure to pay any amounts due hereunder, Customer (whether Biller or Payer) shall notify all parties having an interest in its shipment(s) of BlueX Pay 's rights and/or the exercise of such lien. Unless, within thirty days of receiving notice of BlueX Pay’s intent to exercise such lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of BlueX Pay, guaranteeing payment of the monies owed, plus all charges accrued or to be accrued, BlueX Pay shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.

Term and Termination

Term. This Agreement shall become effective on the Effective Date and shall continue in effect until (a) Customer no longer uses any BlueX Pay Services and Customer no longer has access to the BlueX Pay System or (b) terminated earlier pursuant to Section 9.2 or Section 9.3.

Mutual Termination Right. Either Party may terminate this Agreement if the other Party: (a) breaches a material representation, warranty, term, condition or obligation under this Agreement, and fails to cure such breach within ten (10) days after receiving written notice of such breach, or (b) is dissolved, becomes insolvent, files bankruptcy, or generally fails to pay or admits in writing its general inability to pay its debts as they become due.

Additional Termination Rights. BlueX Pay may terminate this Agreement or suspend all or a portion of the BlueX Pay Services immediately if (i) Customer’s performance of its obligations or use of the BlueX Pay Services violates any national, state or local law, rule or regulation; (ii) BlueX Pay reasonably determines, based on its evaluation of Customer’s financial condition or business prospects, that a material adverse change has occurred in Customer’s financial condition, or that such a change is reasonably likely to occur and to adversely impact BlueX Pay; (iii) Customer fails to pay any amount due hereunder within five (5) days of its due date; or (iv) Customer submits an invoice for payment that is (A) not for a Valid Invoice, (B) from a Person other than Customer, or (C) for products already provided or BlueX Pay Services previously rendered. Customer may terminate this Agreement if it does not consent to a prospective amendment thereto following delivery of notice of such prospective amendment by BlueX Pay. Further, this Agreement shall remain effective until terminated in accordance with its own terms and conditions. You agree that BlueX Pay, in its sole discretion, may terminate your password, account (in whole or in part), or use of the Sites or BlueX Pay Services, and remove and discard any content within the Sites, at any time and for any reason. Except as otherwise expressly set forth herein, you agree that any actions taken under this Section may be effective without prior notice to you.

Survival of Rights. Termination of the Agreement will not limit or affect Customer’s obligations to pay or BlueX Pay’s rights to recover, any amounts for which Customer is liable or obligated pursuant to this Agreement, such obligations and rights to survive indefinitely.

Fees, Invoicing and Payment

Fees and Payment. Payer agrees to pay BlueX Pay for all Approved Transactions and Fees incurred in respect of BlueX Pay Services, all in accordance with the terms of this Agreement.
Fee Payments. BlueX Pay is hereby directed and authorized, without further action by Customer, to collect any and all Approved Transactions and Fees due and payable by Customer by: (i) deducting such Transactions and Fees from any Settlement funds due between BlueX Pay and Customer, or (ii) debiting Customer’s Settlement Account for the amount of such Transactions and Fees as they become due.
Invoicing. If invoices issued by BlueX Pay are not paid in full when due, BlueX Pay will impose on you a monthly late charge, of up to 3% per month. If such late charge is not permitted by applicable law, the maximum amount allowed by such applicable law will be applied on the unpaid balance. Invoice discrepancies must be identified in writing by Customer within twenty (20) days of the invoice date.
Fee Adjustment. BlueX Pay may adjust the Fees at any time. Any such adjustments will become effective upon written notice to Customer.
Renewal Term Fees. The Fees charged during any Renewal Term will be based on BlueX Pay’s then-current standard rates at the time of renewal, which will be provided to Customer.
Collection Process. BlueX Pay may initiate a collection process or legal action to collect any monies owed to BlueX Pay, including but not limited to appointing any Person as its agent to collect any amount due by Customer to BlueX Pay and transferring Customer’s data to such agent. You agree to pay all our costs for such action, including any reasonable third parties’ and attorneys' fees.

Compliance with Law and Acceptable Use Policies

Legal Requirements. The Parties agree to comply with, and not use the BlueX Pay Services in violation of Legal Requirements, including laws and regulations set forth in Sections 4.1 and 4.2, and each Party will be solely liable for their respective violation of Legal Requirements. Customer will use the BlueX Pay Services in accordance and compliance with this Agreement and the written policies and procedures provided by BlueX Pay from time-to-time. Customer will not use the BlueX Pay Services in violation of BlueX Pay’s, any Processor’s or any Financial Service Provider’s acceptable use policies.
Telecommunication Providers. You agree that when you use the Sites and the BlueX Pay Services, you will remain subject to the terms and conditions of all of your existing agreements with us, our affiliates and/or any unaffiliated service providers, and your internet service provider and mobile service carrier or provider, and that the terms and conditions of this Agreement do not amend or supersede any of those agreements. You understand that those agreements may provide for fees, limitations, and restrictions which might impact your use of the Sites and the BlueX Pay Services (for example, your mobile service carrier or provider may impose data usage or text message charges for your use of or interaction with the Sites or the BlueX Pay Services), and you agree to be solely responsible for all such fees, limitations, and restrictions. You agree that only your mobile service carrier or internet service provider is responsible for its products and services. Accordingly, you agree to resolve any problems with your carrier or other service provider directly without involving us.

Representations, Warranties and Covenants

Customer represents, warrants and covenants that:

it is a corporation duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation;
it is in compliance with all Legal Requirements, including laws and regulations set forth in Sections 4.1 and 4.2, pertaining to its performance of its obligations under, or in any way related to, this Agreement;
it has the requisite power and authority to execute this Agreement;
executing this Agreement does not constitute a material conflict with, breach or default under any applicable law, its respective charter or bylaws, or any documents, agreements, or other instruments which are binding upon Customer;
this Agreement creates valid, legal, and binding obligations that are enforceable against Customer;
it has, and shall have, the lien rights and/or security interests as set forth in Section 8 hereof;
it has notified its customers of the transfer and assignment of the aforementioned lien rights and security interests in the Collateral to BlueX Pay to secure its obligations hereunder;
it has notified its customers that BlueX Pay or its affiliated entity holds and maintains a general and continuing lien and security interest in the Collateral to secure Customer’s obligations hereunder and under;
it has not entered into any contract or agreement with any Person, including but not limited to, its customer, which provides that Customer shall not assign or otherwise transfer said liens and security interests;
its customers have agreed or otherwise consented to the transfer and assignment of said lien rights and security interests in the Collateral to BlueX Pay or its affiliated entity;
it has a contract with its customers and/or maintains and publishes a tariff which (1) provides for the assertion of the liens over the Collateral; (2) puts its Customers on notice that third parties such as BlueX Pay or its affiliated entity may have liens or security interests over the Collateral; and (3) provides for the right of Customer and/or such third parties to execute on such lien to sell or otherwise dispose of the Collateral;
it will defend the Collateral against all claims and demands of all Persons, and will not permit any circumstances to exist under which BlueX Pay or its affiliated entity may lose its lien or lien priority on the Collateral;
it will promptly pay all potential taxes upon the Collateral that might result in the imposition of a lien upon the Collateral;
it will not sell, assign, mortgage, lease, pledge, lend, transfer, allow any third party to use or otherwise dispose of the Collateral without the prior written consent and at the sole discretion of BlueX Pay;
it shall allow BlueX Pay or its representatives free access to and right of inspection of the Collateral at any time;
all of the information supplied and statements made to BlueX Pay by or on behalf of Customer, including but not limited to Customer’s financial information, capacity to make payments hereunder or the Collateral, and information related to any BlueX Pay Services, are and shall be true and complete and accurate, whether supplied or made prior to, contemporaneously with or subsequent to the execution of this Agreement; and
that no tangible document of title can be substituted for an electronic record, and that Customer’s customers have acknowledged and agreed to same. Customer expressly agrees and acknowledges that BlueX Pay shall have the right to instruct the underlying carrier(s) to release any Collateral in their possession, or the possession of their agents, to the custody of BlueX Pay or its agents, and that the carrier(s) are directed to follow all such instructions by BlueX Pay with respect to the disposition of any portion of the Collateral, regardless as to whether BlueX Pay is in possession of the applicable bill(s) of lading.

Disclaimer of Warranties. Except as specifically set forth in this Agreement, BlueX Pay disclaims all warranties, express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose, which relate to the BlueX Pay Services provided under this Agreement. Further, BlueX Pay does not warrant that Customer’s use of the BlueX Pay Services or any component thereof will be uninterrupted or error-free.
Limitation of Liability.

Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL BLUEX PAY BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT BLUEX PAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE BLUEX PAY SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH BLUEX PAY OR THE BLUEX PAY SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO THIRD PARTY VENDORS OR SERVICE PROVIDERS; OR (5) ANY OTHER MATTER RELATED TO THE BLUEX PAY SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING DISCLAIMER OF LIABILITY SHALL NOT APPLY TO LIABILITY OF BLUEX PAY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY BLUEX PAY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY BLUEX PAY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL BLUEX PAY BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) $10,000 AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF BLUEX PAY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY BLUEX PAY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY BLUEX PAY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BLUEX PAY AND YOU.

Indemnification.

Customer Indemnity. Customer will indemnify, defend, and hold harmless BlueX Pay, its directors, officers, employees, affiliates, and agents (collectively, the “Indemnitees”) against any third party claims, losses, costs, fines, penalties or damages (including court costs and reasonable attorneys’ fees) or for any injury to any Person or their property (collectively, “Claims”) to the extent arising out of or connected with Customer’s (and affiliates, employees, agents or representatives of Customer) (i) negligence or willful misconduct; (ii) material breach of or any provision of this Agreement or the Processor Terms; (iii) use of the BlueX Pay Services or any component thereof for any purpose not permitted by the Agreement; (iv) infringement of any patent, copyright, trademark, service mark, trade secret, or other proprietary right of a third party; and (v) failure to comply with its obligations and representations under this Agreement.
BlueX Pay agrees to promptly notify Customer upon becoming aware of any Claim, provided, that failure to promptly notify Customer shall not relieve Customer of any liability hereunder. Customer shall, in a diligent and timely manner, (i) provide BlueX Pay with all material information pertaining to a Claim and Customer efforts to defend against the Claim; (ii) respond to reasonable inquiries by BlueX Pay regarding such Claim or defense and (iii) otherwise cooperate with BlueX Pay concerning the resolution of such Claim. BlueX Pay may, in its sole discretion, participate in any defense or settlement of a Claim and/or appoint adequate counsel, at Customer’s sole expense, to defend any Indemnitee against a Claim. Customer agrees not to enter into any settlement, consent, or other like resolution of a Claim without the written approval of BlueX Pay, which BlueX Pay shall not unreasonably withhold. The issuance of such approval shall not waive or otherwise limit the indemnity rights of an Indemnitee under this provision.

Confidential Information; Information Security; Mode of Communication; Collection of Data

“Confidential Information” means all data or information that is competitively sensitive material or not generally known to the public whether marked confidential or proprietary, including, without limitation:

all information concerning the disclosing Party’s and its affiliates’, and their customers’, suppliers’, and other third parties’ past, present, and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales, and other commercial strategies;

a disclosing Party’s unpatented inventions, ideas, methods, and discoveries, trade secrets, know-how, unpublished patent applications, and other confidential intellectual property;

all designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing;

any third-party confidential information included with, or incorporated in, any information provided by the disclosing Party to the other Party; and

all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials (the “Notes”) prepared by or for the receiving Party that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.

Disclosure and Use Restrictions. Neither Party will disclose, reproduce, transfer nor use the other Party’s Confidential Information except (i) as necessary in connection with providing or using the BlueX Pay Services; (ii) as specifically allowed under this Agreement; or (iii) to the extent necessary to comply with Legal Requirements or a valid court order, provided the disclosing Party must use reasonable efforts to notify the other Party prior to disclosure (unless such notification is prohibited by Legal Requirements or a valid court order) so the other Party may seek a protective order or otherwise prevent or limit disclosure of its Confidential Information. Each Party’s employees, affiliates, agents, advisors, or subcontractors with access to the other’s Confidential Information will comply with the confidentiality provisions of this Agreement; and each Party will be responsible for the performance of its employees, affiliates, agents, advisors or subcontractors with respect to the foregoing requirement. Each Party will take such steps to prevent disclosure of the other Party’s Confidential Information as it would take to prevent disclosure of its own Confidential Information of similar nature; including, at a minimum, commercially reasonable steps.
Information Security. Each Party agrees to employ appropriate safeguards to protect Confidential Information residing on their respective technology systems or under their control, including through their use of third party vendors or subcontractors, if any, in connection with the BlueX Pay Services. Each Party will maintain commercially reasonable information security practices designed to prevent unauthorized or unlawful access to, use, disclosure or alteration of Confidential Information (each, a “Security Incident”). In the event of a Security Incident involving the other Party’s Confidential Information, the affected Party will promptly (a) assess the nature and scope of the Security Incident; (b) identify the Confidential Information involved, if any; (c) take appropriate steps to contain, control and stop the Security Incident; and (d), in the event Confidential Information was compromised, promptly notify the other Party of the Security Incident, subject to any request by law enforcement or other government agency to withhold such notice pending the completion of an investigation. BlueX Pay is not responsible for and does not control third party telecommunication lines used to provide the BlueX Pay Services; and will not be responsible for the security of any transmissions using these lines.
Ownership. This Agreement does not provide either Party with any right, title, or interest in or to the Confidential Information of the other Party.
Return or Destruction of Confidential Information. At any time during or after the term of this Agreement, at the disclosing Party's written request, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. In addition, the receiving Party shall also destroy all copies of any Notes created by the receiving Party and certify in writing to the disclosing Party that such copies have been destroyed. Notwithstanding the foregoing, the receiving Party may retain copies of Confidential Information that are stored on the receiving Party’s IT backup and disaster recovery systems until the ordinary course deletion thereof. The receiving Party shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
Communications. By your use of the Sites, you also expressly consent to receiving servicing, collection, marketing, and other calls and messages, including auto-dialed and pre-recorded message calls, and SMS messages (including text messages) from us, our affiliates, marketing partners, agents, and others calling at their request or on their behalf, at any telephone numbers that you have provided or may provide in the future (including any cellular telephone numbers). Your cellular or mobile telephone provider may charge you according to the type of plan you carry. Your consent will be effective even if the number you have provided is registered on any state or federal Do-Not-Call (DNC) list. This consent for auto-dialed and prerecorded calls shall remain in effect until you revoke it. Your consent to these calls may be revoked by informing the telemarketing representative, or by any other reasonable method that ensures we receive the revocation. Your consent to telemarketing calls is not a condition of obtaining a loan.

You also consent to the recording and monitoring, for quality assurance, training, risk management, collection or other purposes, of any call that you place with us (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) or that we (or our agents, representatives, affiliates, third parties or anyone calling on our behalf) place to you.

Intellectual Property.

Grant of License. BlueX Pay hereby grants Customer and its employees a limited, revocable, non-exclusive, non-transferable, license to use the BlueX Pay Services as described herein, and subject to the terms and conditions of this Agreement. Customer is expressly prohibited from renting, leasing, sublicensing, assigning, transferring, reselling, and/or or otherwise transferring rights to the BlueX Pay Services.
Title; Intellectual Property. Except for the rights expressly granted in this Agreement: (a) this Agreement does not transfer from BlueX Pay to you any right, title or interest in or to any intellectual property owned by BlueX Pay or any third party, and all right, title, and interest in such intellectual property will remain solely with BlueX Pay or such third parties, as applicable; and (b) no license, right or interest in any BlueX Pay trademark, copyright, trade name, or service mark is granted herein. Further, you agree that you will not, directly or indirectly copy, modify, translate, transmit, distribute, adapt, reproduce, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from the Sites.
Use of Marks and Publicity. Neither Party will use any trademark, service mark, trade name nor other proprietary designation (collectively, “Marks”) owned, licensed, or registered by the other Party without prior written consent; provided, however, BlueX Pay may use Customer’s name in publicity indicating that Customer and BlueX Pay have entered into a contractual relationship, as well as customer lists or other advertising identifying the customers of BlueX Pay. Neither Party will use or reference the other's Marks in any manner that disparages or portrays the other in a negative light. Neither Party may alter, modify, or change the other’s Marks in any way. A breach of the terms of this Agreement related to the use of a Party’s Marks will cause irreparable harm such that the non-breaching Party will not have an adequate remedy at law and, in addition to any other rights or remedies available at law or in equity, will be entitled to seek injunctive relief against the breaching Party (without posting a bond or other security).

Verification; Audit and Inspection.

BlueX Pay may periodically select certain Transactions for audit. To assist with this process, Customer agrees to provide requested supporting documentation for the Transaction(s), such as bills of lading or invoices reflecting dollar amounts due and the date. Customer further agrees to assist BlueX Pay in obtaining and verifying invoices and bills of lading submitted for payment using the BlueX Pay Services.
Audit and Inspection. During the term of this Agreement and for one (1) year thereafter, BlueX Pay may audit or inspect Customer’s records related to its performance, duties or obligations under this Agreement, during normal business hours and upon reasonable notice.
Examinations. To the extent permitted by law, BlueX Pay and Customer will cooperate with each other in providing information or records in connection with examinations, requests, or proceedings of regulatory or law enforcement authorities.

General.

Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of California.
Arbitration Agreement. Please read the following arbitration agreement in this Section (Arbitration Agreement) carefully. It requires you to arbitrate disputes with BlueX Trade and limits the manner in which you can seek relief from us.

Applicability of Arbitration Agreement. You agree that any dispute, claim or request for relief relating in any way to the BlueX Pay Services provided to you by BlueX Trade or to any aspect of your relationship with BlueX Trade, will be resolved by binding arbitration, rather than in court, except as expressly set forth in Section 19.2(b). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Notwithstanding any other provision herein (a) you may assert claims or seek relief in small claims court if your claims qualify; and (b) you or us may seek interim, injunctive, or other similar equitable relief in any court of competent jurisdiction. Any legal suit, action, or proceeding permitted pursuant to clause (b) above may be instituted in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and County of San Francisco, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. service of process, summons, notice, or other document by mail to such Party's address set out herein shall be effective service of process for any such suit, action, or other proceeding brought in any such court.

Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or requests for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Where the dispute is of an international nature, this arbitration provision is subject to the JAMS International Arbitration Rules. The place and seat of the arbitral proceedings shall be situated in the City and County of San Francisco, the State of California, the United States.

Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and BlueX Pay. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us. The place and seat of the arbitral proceedings shall be situated in the City and County of San Francisco, the State of California, the United States.

Waiver of Jury Trial. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, YOU AND BLUEX PAY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO BRING ANY ACTION IN COURT AND TO HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and BlueX Pay are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as otherwise specified in this Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this subsection’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with BlueX Trade.

Severability. Any provision of this Agreement that is determined to be illegal, invalid, or unenforceable will be deemed void; and the remainder of this Agreement will continue in full force and effect. The Parties will substitute a valid provision approximating the intent and economic effect of any invalidated provision.
Entire Agreement; Amendments. This Agreement, including the section headed “Introduction”, constitutes the entire agreement between Customer and BlueX Pay, and supersedes all prior agreements, written or oral, related to the BlueX Pay Services. This Agreement incorporates each applicable Privacy Policy, Separate Service Conditions and includes any related attachments, schedules, or exhibits or links, as amended from time to time, as well as any Application completed by Customer online, which are incorporated herein by reference. BlueX Pay reserves the right to modify or change this Agreement, as well as its policies relating to the BlueX Pay Services, at any time, in our sole discretion. BlueX Pay will post revised terms and conditions or policies on our Sites, and will provide notice to you of material changes to this Agreement. You will be deemed to have accepted and agreed to any revisions or changes to this Agreement at the time of (i) your electronic acceptance of the revised, changed, or new Agreement, or (ii) your use of the BlueX Pay Services after the effective date of the revised, changed or new Agreement. If the revised, changed or new Agreement is not acceptable to you, your sole and exclusive remedy will be to stop using the BlueX Pay Services.
Counterparts. Where applicable, this Agreement may be executed in two or more counterparts, each of which is deemed an original, and all of which together constitute one and the same instrument. Facsimile, electronic, or other copies of the executed Agreement are deemed valid and effective.
No Third-Party Beneficiaries. Except as expressly stated herein, there are no third-party beneficiaries to this Agreement and it will not be construed to create such rights, benefits or remedies generally.
Assignment. Subject to the Separate Service Conditions, this Agreement may not be assigned, voluntarily or by operation of law, by either Party without prior written consent from the other Party, which will not be unreasonably withheld. Consent, however, is not needed for BlueX Pay to assign this Agreement or any portion thereof to an affiliate or in connection with a merger, acquisition, or sale of BlueX Pay’s of all or a portion of the stock of BlueX Pay or its parent. Any assignment in violation of this subsection will be deemed null and void. This Agreement will extend to and be binding upon any permitted successors and assigns.
Subcontractors. BlueX Pay may subcontract all or any portion of the BlueX Pay Services to its affiliates or vendors both within and outside the United States; provided, BlueX Pay will remain responsible for the performance of the BlueX Pay Services provided through its vendors (if any).
Notices. Except as otherwise expressly set forth herein, all notices or other communications under this Agreement will be deemed given when mailed by (i) first class registered or certified mail, postage prepaid, return receipt requested; or (ii) by nationally recognized courier service. All notices or other communications will be effective upon receipt. Any notice to (a) BlueX Pay shall be directed to the attention of BlueX Pay, 20955 Pathfinder Rd. Suite 230 Diamond Bar, CA 91765, USA, (b) notice to Customer shall be sent to the Person and address listed on the Registration Application, or such other address as a Party may designate in writing.

Notice to Customer could also be posted on the Site or sent via email to Customer by BlueX Pay.

Survival of Obligations. All Sections of this Agreement which, by their nature, should survive termination of the Agreement will survive.
Independent Contractors. BlueX Pay and Customer are independent contractors. Nothing in this Agreement will be deemed to create a joint venture, partnership, employment or similar relationship between the Parties. Except as specifically provided for herein, neither Party is an agent or representative of the other; and neither Party will represent otherwise.
Waiver. No delay or single, partial, failure, abandonment, or discontinuance of either Party to exercise any right, power or privilege hereunder will affect such right, power or privilege. The Parties’ rights and remedies under this Agreement are cumulative and not exclusive. Any waiver, consent, or approval of any failure to comply, breach or default under this Agreement must be in writing, will be effective only to the extent set forth in such writing and will not continue to apply to additional failures to comply, breaches or defaults.
Electronic Signatures. Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included in this Agreement or agreements referred to in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign or otherwise execute such record, including facsimile or email electronic signatures.

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EXHIBIT A

Approved Jurisdictions

Initial approved jurisdictions include United States and Hong Kong, SAR of the PRC.

EXHIBIT B

BlueX Pay Program Fee Schedule

Please reference the fees here, as these may change from time to time.

Other miscellaneous fees include:

Fee Type	Fee
Returned ACH and Reversal fee	USD $35.00 or 1%, whichever is greater
BlueX Invoice Late Fee	Up to 3% per month

SCHEDULE 1

List of Separate Services

For Fully Registered Payers

Freight Pay-it-Later Service, related Separate Service Conditions found here

Cargo Pay-it-Later Service, related Separate Service Conditions found here

For Fully Registered Billers

Trade Financing Service, related Separate Service Conditions found here

SCHEDULE 2

List of U.S. jurisdictions where Airwallex is licensed as a money transmitter

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
District of Columbia
Florida
Georgia
Idaho
Illinois
Iowa
Kansas
Kentucky
Louisiana
Maine
Maryland
Michigan
Minnesota
Mississippi
Missouri
Montana
Nebraska
New Hampshire
New Jersey
New Mexico
North Dakota
Ohio
Oklahoma
Oregon
Puerto Rico
South Carolina
South Dakota
Tennessee
Texas
Utah
Vermont
Virgin Islands
Washington
West Virginia

License details and certificates can be found at the following link: https://assets.ctfassets.net/sxag7u4cz1re/49E7HSbXlQuoesscxtpq7w/4dd4a36819f2f65174643afcc8134a6f/Consumer_Access_-_Company_Jan_20_2024_.pdf

[a]“Person” is a defined term meaning a corporation, limited liability company, association or partnership.

Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with BlueX Trade.