General. The terms and conditions found in the “General Terms and Conditions” section of the ModernRails Terms and Conditions (“MRTC”) apply to all Purchased Services. The Parties understand that specific terms and conditions may apply to certain Purchased Services, which shall be described in the applicable addenda incorporated into MRTC.

Services. ModernRails shall provide, or cause its Affiliate to provide, to Customer the Purchased Services defined in the Order Form. The Parties may execute different Order Forms for different Applications of the same Customer.

API Documentation and Tools. ModernRails shall provide Customer with certain tools to access and utilize the AccelerationCloud APIs, which includes the API Documentation available at https://docs.accelerationcloud.com, or a successor webpage as designated by ModernRails, and other integration and guides as ModernRails determines.

ModernRails Workspace. ModernRails shall provide Customer with access to the Workspace available at https://client.accelerationcloud.com/ (or a successor webpage as designated by ModernRails) (the “Workspace”) where Customer is able to, among other features, (i) create a Customer account with ModernRails (the “Customer Account”); (ii) provide access to the Customer Account to authorized employees and agents by creating users of the Workspace and designating privileges to each; (iii) create Users and/or transactions; and (iv) view Users, transactions, and accounts. Customer acknowledges that ModernRails may remove or add functionalities in the Workspace from time to time.

Beta Versions. From time to time, ModernRails may make available services (or a feature of a Service) that are labeled as “coming soon,” “pre-release,” “beta,” or similar designation (each a “Beta Version”). Beta Versions are intended for evaluation purposes and are not for production use. Access to and use of a Beta Version may be subject to additional fees, agreements or requirements. Beta Versions are not considered Purchased Services under MRTC; however, all restrictions, ModernRails’ rights, and Customer’s obligations concerning the Purchased Services shall apply equally to Customer’s use of Beta Versions. Unless otherwise communicated, any Beta Version trial period will expire on the date the Beta Version becomes generally available. ModernRails may discontinue Beta Versions or remove Customer’s access to them at any time and may never make them generally available. Beta Versions are provided AS IS and may contain bugs, errors, or other defects. Customer assumes all risk related to any use of Beta Versions and ModernRails shall have no liability for any harm or damage arising out of or in connection with a Beta Version.

Customer Documents. ModernRails, from time to time, may request among other information, certain corporate, business, financial, or beneficial ownership information from Customer (“Customer Documents”), and Customer shall provide such Customer Documents within seven (7) days from the date of request. Customer shall also inform ModernRails of any beneficial ownership information change (a change of ownership of more than ten percent (10%) of the equity interest of Customer or a change of the natural person with significant responsibility to control, direct, or manage Customer) within ten (10) days of such change. Customer understands and agrees that any such information may be shared with ModernRails’ financial institution partner and third parties to the extent necessary to provide the Purchased Services.

Customer Support. ModernRails shall provide Customer with commercially reasonable support, inclusive technical and operational support, to (i) integrate with the AccelerationCloud APIs and (ii) provide the Purchased Services to final Users, as provided in the SLA.

Non-Solicitation of Users. During the Term of MRTC, except as provided in MRTC, ModernRails shall not solicit or otherwise attempt to establish any direct business relationship with any consumer User that is a User of the Customer under MRTC; provided, however, that Customer understands and acknowledges that the same User may have accounts and access to the Purchased Services via other Customers that have contracted with ModernRails.

Integration. As a condition of receiving the Purchased Services under MRTC, Customer’s integration of its APIs and/or its Application with AccelerationCloud APIs shall be in accordance with the Integration Requirements.

Integration Requirements. ModernRails will provide Customer with integration requirements (the “Integration Requirements”), which include (i) requirements and information available in the AccelerationCloud API Documentation; (ii) use cases; (iii) functional and/or technical specifications relating to all available functions and features of ModernRails’ Purchased Services and AccelerationCloud APIs, in any document form and/or development work to be undertaken by Customer and oral or written guidance from ModernRails’ personnel during the integration; and (iv) disclosures and legal information that ModernRails provides to Customer to make available to the Users in the Application. The Integration Requirements may be updated from time to time.

Approval Process. After execution of MRTC and confirmation of the funding of the Reserve Account in accordance with the Order Form, Customer shall begin the process for approval to make the Purchased Services available to public Users (“Launch Date”). The phases of the approval process are: (i) Beta Testing (as defined below) and (ii) Full Approval (as defined below) and the requirements, tests, and restrictions of each phase shall be provided to Customer at each stage of the process and ModernRails will communicate approval for each phase within a reasonable time of the completion of a phase as determined by ModernRails in its sole discretion.

API Keys. After the execution of MRTC, ModernRails shall provide Customer with the code used to identify the Customer and authorize the use of the AccelerationCloud APIs (the “API Keys”) specific for Customer Account for the testing environment (“Sandbox”), where the integration shall be completed, and the Parties will test the Purchased Services. After the Beta Testing Approval, ModernRails shall provide Customer with production API Keys (the “Production API Keys”), which will enable Customer to start the Beta Testing.

User Notices and Notifications. Regulatory Alerts. The Parties understand that Customer manages the relationship between Customer and User. Customer understands and agrees that ModernRails may provide certain notices to Users directly due to the regulated nature of the services (the “Regulatory Alerts”). ModernRails reserves the right to determine when ModernRails should provide such Regulatory Alerts directly to Users, at ModernRails’ sole discretion.

Suspension, Limitation or Termination of Access. ModernRails reserves the right to suspend, revoke, limit or terminate your access to APIs and Purchased Services immediately freeze account funds at any moment if ModernRails or its Affiliates, at either’s sole discretion, suspects that the Purchased Services, the Application or other related services and goods provided to Customer are being used in violation of the Integration Requirements use cases or in connection to any suspicious illicit activity.

Review and Tests. Before Beta Testing Approval and Full Approval, and as a condition to such approvals, and periodically from time to time, ModernRails may submit Customer and Customer Application to the following reviews and/or tests (“Review and Tests”): (i) Code Review; and (ii) Compliance Review.

During the approval process, the Parties shall mutually define a date for the Review and Tests. For periodic Review and Tests, ModernRails shall provide reasonable notice to Customer of such Review and Tests.

ModernRails shall communicate Customer of any vulnerability or issue found in such reviews or tests and Customer shall make all the adjustments to comply with ModernRails’ Integration Requirements and the security requirements set forth in Section 3.3 within the timeline provided by ModernRails. If ModernRails, at its sole discretion, understands that the vulnerability or issue found may bring a regulatory concern or serious breach risk, ModernRails may provide Customer with less than forty-eight (48) hours for implementation of the necessary changes. In case such changes are not corrected in the timeline provided, ModernRails may suspend Customer API Keys until such changes are corrected to ModernRails’ sole satisfaction.

Code Review. ModernRails shall perform a code review (“Code Review”) into Customer integration, in which ModernRails shall check the code used by Customer in its integration with ModernRails APIs in order for the Purchased Services to be provided effectively. If ModernRails encounters any mistake or issue, ModernRails shall inform Customer, which shall correct the code in no later than seven (7) days.

Compliance Review. ModernRails will perform compliance reviews (“Compliance Reviews”) which shall include a review and verification of Customer, Customer Application and APIs integration compliance with regulatory, disclosures and marketing requirements as provided by ModernRails.

Ongoing Compliance. ModernRails may, in its discretion, perform periodic compliance reviews of Customer, and Customer’s Application and API integrations to ensure that the Application and the Purchased Services are operated, offered and maintained in compliance with applicable laws, the Integration Requirements, Security Requirements, Marketing Guidelines, API Documentation, Terms of Service and the terms of MRTC. Customer will provide, upon ModernRails’ request, any additional information or documentation reasonably required by ModernRails, ModernRails’ financial-institution partner or a regulatory authority in order to confirm such ongoing compliance.

Material Changes. Customer will notify ModernRails of any material changes to Customer’s Application, systems or business, including, without limitation, any material changes with respect to Customer’s terms of service, policies and procedures and high-risk users and any materials or information necessary or appropriate to aid ModernRails and ModernRails’ financial-institution partner in reviewing and evaluating such changes.

Monthly Base Fee. The Monthly Base Fee defined in an Order Form shall be payable on a monthly basis, on the fifth (5th) day of each month. ModernRails reserves the right to change any amounts due under MRTC (collectively, “Fees”) and to institute new Fees at the end of the Initial Term or each Renewal Term, upon at least sixty (60) days prior notice to Customer.

Implementation Change Fee. ModernRails reserves the right to charge Customer an “Implementation Change Fee” as set forth in the Order Form, in the event that after the creation of an agreed-upon Specification Sheet, Customer wishes to make a material change to its use case, which results in a change to the Specification Sheet.

User Fees. In the event any Purchased Service selected on an Order Form is associated with user fees (“User Fees”), such User Fees are calculated monthly by multiplying the fee by the number of Users associated with the applicable Purchased Service who have (i) transaction activity or (ii) account balance(s), ledger account negative balance(s), or digital wallet(s) (as applicable) at any moment in a calendar month. User Fees are payable on the fifth (5th) day of the following month.

Transaction Fees. In the event the Purchased Services selected on an Order Form are associated with transaction fees (“Transaction Fees”), such Transaction Fees shall be charged at the moment of the transaction. Customer shall inform ModernRails if the Transaction Fees shall be paid by Users or by Customer. If Customer is responsible for paying the Transaction Fees, Customer acknowledges that if the Customer Deposit Account has insufficient funds, the ability to provide transaction services to Users may be limited.

Other Fees. If applicable and as set forth in MRTC, ModernRails shall charge and collect other fees, including but not limited to, API call fees, inquiry fees, and penalty and disincentive fees. Any Services or features associated with the Services that are not selected on an Order Form as a Purchased Services but utilized by Customer shall be charged at ModernRails’ then-current fees.

Pass Through Fees. In addition to the Fees set forth in MRTC, ModernRails may charge and collect from Customer any reasonable third-party fees that are, in ModernRails’ sole discretion, directly associated with Customer’s use of the Purchased Services (“Pass-Through Fees”). Pass-Through Fees may include, but are not limited to, fees, charges, assessments, fines, or penalties imposed by third parties, such as card networks, in connection with Customer’s use of the Purchased Services. Pass-Through Fees also include increases to the Fees set forth in MRTC that result from federal, state or local laws, ordinances or other regulatory, administrative or governmental acts.

Missed Payments. If any amount is not paid to ModernRails on its due date, such amount is considered outstanding. ModernRails reserves the right to suspend Customer’s API Keys and access to any Purchased Service or Services until the outstanding amount plus any additional fees is paid in full, unless MRTC is otherwise terminated in accordance with its terms. Undisputed outstanding amounts that remain unpaid for thirty (30) days are subject to a finance charge of one- and one-half percent (1.5%) per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in the immediate termination of MRTC or the revocation of Customer’s API Keys and access to any Purchased Services.

Dispute. If you believe that ModernRails incorrectly billed you, you must email us at accounting@fintechautomation.com no later than sixty (60) days after billing in which the error or problem appeared, in order to request an adjustment or credit.

Customer Responsibilities. Customer is also responsible for the following amounts: (i) Customer’s failure to pay any outstanding fees or Liquidated Damages (as defined below) owed to ModernRails; (ii) any amount related to chargebacks, returns or provisional credit extension of transactions initiated on Customer’s Application, via the Workspace or the User use of the Purchased Services; and (iii) any additional liability as defined in the specific service Addendum.

Reserve Account. In order to secure Customer’s liability to ModernRails over the amounts described in Sections 6 and 7.1, Customer shall establish a demand deposit account (a “Reserve Account”) with a financial-institution partner of ModernRails using ModernRails Purchased Services, separate from the Customer Deposit Account, and Customer shall fund the Reserve Account in the amount defined in the Order Form (“Reserve Amount”). Customer shall maintain each Reserve Account for the duration of MRTC and for one hundred (100) days thereafter. Customer will maintain funds in an amount at least equal to the Reserve Amount in the Reserve Account at all times and ModernRails shall debit from Customer’s Designated Bank Account, in each billing cycle, any existing deficit in the Reserve Amount. If requested by ModernRails, Customer shall grant ModernRails a security interest in the Reserve Account and provide any other requested documentation to perfect such security interest. Customer shall not at any time grant any security interest in or permit a lien to be placed on the Reserve Account to any person or entity without the prior written consent of ModernRails. In case of termination of MRTC, ModernRails shall cause its financial-institution partner to return to Customer any amount still available in each Reserve Account, on or before one hundred (100) days after the effective date of termination or one hundred (100) days after the last transaction was performed under MRTC, whichever is later.

Debit to Reserve Account. Customer agrees that ModernRails may debit from the Reserve Account the amounts in Sections 6 and 7.1. The Parties agree that ModernRails may only debit from the Reserve Account amounts in connection to the list provided in Sections 6 and 7.

Ownership. AccelerationCloud is the exclusive owner of and retains all rights, titles and interests to AccelerationCloud APIs and ModernRails is the exclusive owner of and retains all rights, titles and interests to the Purchased Services, the ModernRails Proprietary Payment Network and Card Issuer Processor system and all modifications, enhancements, upgrades and updates thereto, ModernRails trade names, trademarks, logos, domain names, copyrights, source code, data, ModernRails Data and Confidential Information and all intellectual property rights therein and thereto (collectively, “ModernRails IP”). Customer shall retain all rights, title and interest in the intellectual property of the portions of Customer Application that do not include the Services or any other ModernRails IP, and to any of Customer’s trade names, trademarks, logos, and domain names (“Customer IP”). There are no implied licenses under MRTC. Except as set out in MRTC, neither Party shall acquire any rights in the foregoing and neither Party shall copy, transmit, transfer, modify or create derivative works, reverse engineer, reverse compile, reverse assemble or otherwise determine or derive source code of the other Party’s IP, nor permit or authorize any third party to do any of the foregoing.

ModernRails Trademarks. ModernRails grants Customer a limited, non-exclusive, non-transferable, nonsublicensable, revocable license to use ModernRails' trade names, trademarks, logos, and domain names (“ModernRails Marks”) as provided by ModernRails in the Marketing Guidelines and Integration Requirements. ModernRails may revoke this license at any time at its discretion. If revoked, Customer agrees to promptly remove any ModernRails Marks from Customer’s website, Application, marketing materials, and any other material provided to Users or other third parties. Customer shall not alter, obscure, remove, or fail to include any ModernRails Marks, copyright notice or other proprietary rights notices that appear on any materials or user interfaces related to the Services.

Confidential Information. As used in MRTC, “Confidential Information” shall include (1) MRTC and all terms thereto, (2) any non-public information communicated by the disclosing Party (“Discloser”) in connection with MRTC marked or declared as “Confidential” or if not so marked or declared, should be reasonably understood from the context of disclosure or from the information itself to be confidential to the Party obligated to keep the information confidential (“Recipient”), and (3) without limitation, the following non-public information: technical data, trade secrets, knowhow, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, processes, formulas, techniques, engineering designs and drawings, regulatory information, agreements with third parties, lists of, or information relating to: suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, business model, financial forecasts, historical financial data, budgets or other business information, including Customer Documents. Notwithstanding any failure to identify it, however, all of ModernRails’ systems and protocols relating to (i) user on-boarding and identity verification, (ii) compliance program, (iii) bank account verification, (iv) risk mitigation, (v) fraud prevention, and (vi) data security shall be Confidential Information of ModernRails.

The following information will not be considered Confidential Information: (a) information that is in the public domain or that enters the public domain through no fault of the Recipient; (b) information independently developed by the Recipient, without any use of information disclosed by the other Party; (c) information rightfully disclosed to the Recipient by a third party without continuing restrictions on its use; and (d) information demonstrably known to the Recipient prior to the Effective Date which was not obtained from the Discloser to MRTC.

Non-Disclosure. Recipient shall not use any Confidential Information disclosed to it by Discloser for its own use or for any purpose other than as necessary to carry out the integration, provide or use the Purchased Services, or to otherwise fulfill its rights or obligations under MRTC. Recipient shall not disclose or permit disclosure of any Confidential Information of Discloser to third parties or to employees of Recipient, other than directors, officers, employees, consultants, or agents of Recipient to the extent they are required to have the information in order to carry out MRTC.  Recipient shall take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Discloser in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under MRTC to have any such information. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature which shall no less be reasonable care. Recipient shall notify Discloser of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Discloser which may come to Recipient’s attention.

Notwithstanding the above, Customer understands and agrees that ModernRails may share Confidential Information with the financial institution partner or third parties to the extent necessary to provide the Services.

Compelled Disclosure. The Recipient may disclose certain Confidential Information, without violating the obligations of this section, in the event that Recipient or any person to whom they or their representatives transmit or have transmitted Confidential Information become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any such Confidential Information. Notwithstanding, Customer shall, to the extent permitted by law, provide ModernRails with prompt written notice so that ModernRails may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of MRTC. In the event that the ModernRails is unable to obtain a protective order or other appropriate remedy, or if it so directs the Customer, the Customer shall furnish only that portion of the Confidential Information that the Customer is advised by its counsel is legally required to be furnished by it and shall exercise its reasonable best efforts to obtain reliable assurance that confidential treatment shall be accorded such Confidential Information.

Remedies. Each Party’s obligations set forth in this Section 9 are necessary and reasonable in order to protect Discloser and its business. The Parties agree that monetary damages may be inadequate to compensate Discloser for any breach by Recipient of its covenants and agreements set forth in this Section 9. Accordingly, the Parties each agree and acknowledge that any such violation or threatened violation may cause irreparable injury to Discloser and, in addition to any other remedies that may be available, in law, in equity or otherwise, Discloser shall be entitled to seek injunctive relief against the threatened breach of this Section 9 or the continuation of any such breach by Recipient.

This Section 9 replaces and supersedes any prior agreements or obligations regarding confidential information and any Confidential Information shared by the Parties prior to the Effective Date of MRTC shall be governed by the terms of this section.

Mutual Representations and Warranties. Each Party represents and warrants to the other that:

It has the authority to enter into MRTC, and its agreement and ability to perform the obligations hereunder do not violate any agreement or obligation between such Party and any third party.

It has obtained and is in compliance with all requirements and conditions of, all licenses, permits, memberships, consents and authorizations from all regulatory authorities, and additional agreements with third parties, required to enter into MRTC, provide the Purchased Services (in the case of ModernRails) and perform its obligations under MRTC, and engage in the advertising and sale of the goods or services offered for sale or use by that Party, throughout the term of MRTC.

When executed and delivered, MRTC, its exhibits and addenda, will constitute the legal, valid, and binding obligation of each Party, enforceable in accordance with its terms.

No information or technology delivered to the other Party under MRTC will infringe on any copyright, patent, trade secret or other proprietary right held by any third party.

It will disclose to the other Party any changes in representations and warranties made in no more than two (2) business days after such change came into such Party’s knowledge.

Customer Representations and Warranties; Covenants. Customer represents, warrants, and covenants to   ModernRails that:

Customer shall use the ModernRails APIs and Purchased Services in compliance with all laws, regulations, rules, orders of any governmental authority, ModernRails’ Integration Requirements, Marketing Guidelines, and proper User consent.

All other Customer’s information, communications, representations, warranties and Customer Documents provided to ModernRails to create the Customer Account and pursuant to Customer’s Specification Sheet and MRTC are materially true and accurate.

Except as otherwise disclosed in writing by Customer to ModernRails, neither Customer nor, to the knowledge of the Customer, any person directly or indirectly owning ten percent (10%) or more of the equity interests in Customer, any officer or director of the Customer or any person actively participating, or having the right to participate, in the control of Customer’s business (“Principal of Customer”) is or has been subject to the following: (i) criminal conviction (except minor traffic offenses and other petty offenses); (ii) administrative or enforcement proceedings commenced by any state or federal regulatory authority (including, but not limited to, the Securities and Exchange Commission, any state securities regulatory authority, Federal Trade Commission, federal or state financial institution or money transmitter regulator); and (iii) restraining order, decree, injunction, or judgment in any proceeding or lawsuit, alleging fraud or unfair or deceptive practices on the part of Customer or any Principal of Customer.

Except as otherwise disclosed in writing by Customer to ModernRails, there is no litigation or legal proceeding of any kind, including without limitation, any judicial, tax, administrative or arbitration proceeding pending or threatened against Customer which, if adversely determined could reasonably be expected to materially and adversely affect Customer’s business, continuing operation, or ability to perform its obligations under MRTC.

Except as otherwise disclosed in writing by Customer to ModernRails, Customer does not have any direct relationships with any financial institutions for the purpose of providing banking products and services to Users.

ModernRails Representations and Warranties. ModernRails represents and warrants to Customer that:

The Purchased Services shall be performed in compliance with applicable laws and regulations.

It maintains a written information security policy that is in compliance with all applicable law and industry security standards.

It has agreements in place with third-party service providers and financial institutions necessary to provide the Purchased Services to Customer and Users, including agency appointment for the purposes of contracting the financial services herein that will be delivered by such financial institutions.

Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN MRTC, NO OTHER REPRESENTATIONS AND WARRANTIES ARE GIVEN BY MODERNRAILS OR CUSTOMER AND THE PURCHASED SERVICES, APPLICATION AND OTHER SERVICES PROVIDED UNDER MRTC ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. EXCEPT AS SPECIFICALLY SET FORTH IN MRTC, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, BE CONTINUOUS, UNINTERRUPTED, OR ERROR-FREE. THIS DISCLAIMER OF WARRANTY SECTION SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

Term. MRTC will commence on the Effective Date and shall remain in effect until either Party terminates MRTC as set forth herein. Each Order Form shall specify its Initial Term, which shall be automatically renewed for the Renewal Term, without limitation, unless either Party notifies the other ninety (90) days before the end of the Term (Initial Term and Renewal Term collectively defined as “Term”).

Termination. MRTC may be terminated by either Party:

In the event of material breach by the other Party and, to the extent that such breach can be cured, fails to cure such breach within thirty (30) days after receipt of notice by the other Party; or immediately in the case of a false or untrue representation or warranty; provided, however that in the event that Customer fails to pay the Fees in two months within the previous twelve months or fails to replenish the Reserve Account after five (5) days’ notice, ModernRails may terminate MRTC without previous notice.

In the event (i) the other Party becomes insolvent; (ii) an insolvency proceeding is begun against the other Party and not dismissed or stayed within thirty (30) days; or (iii) any material portion of the other Party’s assets is attached, seized, levied on, or comes into possession of a trustee or receiver and the attachment, seizure or levy is not removed within ten (10) days.

Upon direction from any regulatory authority to either Party to cease or materially limit the performance of the rights or obligations under MRTC or the inability to obtain any required regulatory approvals.

In the event of an adverse change in applicable law (or a new adverse interpretation or enforcement policy with respect to existing applicable law) or an adverse regulatory action (including conclusion of regulatory proceeding, investigation, or inquiry) regarding the application of any applicable laws that prohibits, materially impairs or renders commercially impracticable a Party’s ability to perform its obligations as contemplated by MRTC, or a Party has been advised by legal counsel that there is a material risk that its continued performance under MRTC would violate applicable laws (collectively, “Adverse Change”).

Customer’s Right to Terminate for Business Closure. Provided that Customer gives ModernRails ninety (90) days written notice, Customer may terminate MRTC if Customer anticipates that its business will close (cease to operate). Such notice shall reference the applicable reason for termination and include a representation and warranty that the provided reason is true and correct.

ModernRails’ Right to Terminate. ModernRails may terminate MRTC if, in its discretion, or its financial institution(s) partner or a regulatory authority, determines Customer may be subject to undue risk of privacy or security breach, fraud, illegal activity or money laundering, or in the case ModernRails would not be able to provide services to an ultimate beneficial owner of Customer (“Undue Burdens”). In such cases, ModernRails may, with notice, suspend entirely or partially the Services provided to you until ModernRails or the regulatory authority has had a reasonable opportunity to investigate or resolve such event or activity. If ModernRails, at its sole discretion, determines that Customer represents an Undue Burden, ModernRails may terminate MRTC with a fifteen (15) days prior notice.

Transition and Wind-Down. In case of termination or expiration of MRTC or the applicable Order Form for any reason (a “Transition Event”), Customer may elect to transfer the Purchased Services, Users, User Personal Data, and User deposit, checking, savings and loan/advance accounts, debit cards and all funds held in Users’ accounts (“User Funds”) to an alternative depository institution (“Successor Bank”) designated by Customer (“Transfer”) or winddown the same (“Wind-Down”) by providing written notice of such election to ModernRails. Each Party acknowledges that the goals of any Transfer are to benefit the Users by minimizing any possible burdens or confusion and to protect and enhance the names and reputations of the Parties. The Parties agree to cooperate in good faith to affect the Transfer or Wind-Down as soon as possible and provide for a smooth and orderly Transfer or Wind-Down. The period of time between the occurrence of the Transition Event and the completion of the Transfer or Wind-Down is referred to in this Section 11.6 as the “Transition Period”.

As soon as reasonably practicable after the occurrence of a Transition Event, Customer or ModernRails, as applicable, will provide to the other Party in writing a proposed Transfer or Wind-Down plan detailing a plan of action and timeline including milestones and corresponding dates, of the Transfer or Wind-Down. The Parties will meet promptly thereafter to review such proposed plan and diligently work in good faith to promptly determine a mutually acceptable plan and ModernRails fees (“Transition Plan”), which shall be subject to approval by ModernRails’ partner financial institution in all respects.

In the event of a Transition Event and subject to the terms of any Transition-Down Plan, ModernRails’ obligations pursuant to this Section will include, to the extent not restricted by a regulatory authority or by ModernRails’ partner financial institution, using commercially reasonable efforts to coordinate with ModernRails’ partner financial institution to: (i) transfer to Successor Bank all User Funds, or in the Customer’s reasonable discretion, payment of the User Funds to Users, all accounts, and all associated User Personal Data, (ii) assisting the Successor Bank in making any and all regulatory filings necessary to effect the transition of accounts to the Successor Bank, and (iii) executing and delivering, if necessary or appropriate, an account transfer agreement that is acceptable to ModernRails’ partner financial institution, which shall contain terms and conditions generally consistent with banking industry practice for the transfer of accounts between institutions. For the avoidance of doubt, nothing in this Section 11.6 shall require ModernRails to make any operational or engineering changes to transition Users to Successor Bank and ModernRails obligations under this Section 11.6 are contingent upon Customer having paid all Fees owed to ModernRails under MRTC. Customer shall reimburse ModernRails for any filing fees reasonably incurred with respect to any regulatory filings to satisfy its obligations under this Section. During the Transition Period, the Parties shall continue to be bound by and comply with the terms of MRTC and perform all of their obligations hereunder (which shall, for the avoidance of doubt, include payment by Customer of all Fees due and payable under MRTC, including, without limitation, continued payment of the Monthly Base Fee) until such date as Customer notifies ModernRails that the transition to the Successor Bank is complete.

Customer agrees that, in the case Customer is moving to a Successor Bank, Customer shall not discriminate against Users that will be onboarded with the Successor Bank. Customer shall provide all Users the opportunity to migrate or open a new account with the Successor Bank.

In the event MRTC is terminated for any reason except under Customer’s right to terminate due to Customer’s business closure, prior to the end of the Initial Term or during any subsequent Renewal Term, Customer shall be obligated to immediately pay ModernRails, as liquidated damages for lost profits and not as a penalty , an early termination fee equal to the amount of remaining Term Fees left on the then-current Term (“Liquidated Damages”). Such early termination fee shall be presumed to be the amount of damages sustained by ModernRails as a result of such early termination and Customer agrees that it is reasonable under the circumstances.

Except as required by applicable law, in no event will either Party make any public statement or communication with any User regarding the termination or expiration of MRTC without the express prior written approval of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed. Any public statement or communication with any User regarding the termination or expiration of MRTC or any Transfer or WindDown will not disparage any Party.

Limitation of Liability. IN NO EVENT WILL MODERNRAILS BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY, DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES INCURRED IN CONNECTION WITH: (i) MRTC, (ii) ANY ACCOUNT AGREEMENT (INCLUDING BUT NOT LIMITED TO AN APPLICABLE DEPOSIT AGREEMENT), (iii) THE TERMS OF SERVICE, (iv) THE DATA PROCESSING ADDENDUM, OR (v) YOUR USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICES, UNDER ANY THEORY OF LIABILITY OR CAUSE OF ACTION WHETHER IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR OTHERWISE, REGARDLESS OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MODERNRAILS’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO MRTC OR ANY APPLICABLE DATA PROCESSING ADDENDUM REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE FEES MODERNRAILS HAS RECEIVED FROM CUSTOMER DURING THE PRECEDING TWELVE (12) MONTHS. THIS LIMITATION OF LIABILITY SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

Indemnification. Customer agrees to defend, indemnify and hold harmless ModernRails and its Affiliate, subsidiaries, officers, directors, agents, employees, and suppliers (collectively, the “Indemnitees”) from any third party claims, actions, proceedings, and suits and related liabilities, damages, settlements, penalties, fines, costs, or expenses (including reasonable attorneys’ fees and other litigation expenses) (“Claims”) arising from or related to: (a) Customer’s material breach of MRTC, Terms of Service, API Documentation, or any other applicable terms or policies; (b) Customer (or its Users) access or use of the Services; (c) any Security Incident (as defined herein); (d) a breach of Customer’s confidentiality requirements under MRTC; (e) a breach of Customer’s data privacy and security requirements under MRTC, including any requirements under the Data Processing Addendum; (f) Customer’s gross negligence or intentional misconduct; (g) Customer’s violation of any applicable law; and/or (h) Customer’s actual or alleged violation of any User’s or other third party’s personal information or intellectual property rights.

Notice and Electronic Communication. To the fullest extent permitted by law and MRTC, notices and other communications from one Party to the other regarding MRTC (the “Notices”) may be provided electronically, and each Party consents and agrees to receive those Communications in an electronic form and is fully responsible to communicate any change in such Party’s email address. All Notices in electronic format will be considered to be “in writing,” and to have been received no later than twenty-four (24) hours after posting or dissemination. A Party’s consent to receive Notices electronically is valid until revoked upon proper notice.

Notice to Customer. Electronic Communications may be posted on the pages within ModernRails’ website, the Workspace for your Customer Account provided and/or delivered by ModernRails to the email address noted on your Order Form or associated with your Customer Account.

Notice to ModernRails. Customer may give notice to ModernRails by emailing ModernRails at support@fintechautomation.com.

Choice of Law. MRTC shall be governed by and construed in accordance with the laws (excluding conflict of laws rules) of the State of Nevada, and the obligations, rights and remedies of the Parties hereunder shall be determined in accordance with such laws.

Arbitration. Any controversy or claim arising out of or relating to MRTC, as well as any extension or modification thereof, shall be settled by arbitration administered by the American Arbitration Association (the “Association”), conducted on a confidential basis, under the then current Commercial Arbitration Rules including the Optional Rules for Emergency Measures of Protection, strictly in accordance with the terms of MRTC and the substantive law of the State of Nevada. The arbitration shall be held at the regional office of the Association located in Las Vegas, Nevada and conducted by three arbitrators. Unless otherwise agreed, the arbitration decision shall be issued within thirty (30) days after the date of closing of the arbitration hearing. The arbitrators may grant any remedy or relief that could otherwise be awarded under the law. The award rendered by the arbitrators may be entered and enforced in any court of competent jurisdiction. The parties will jointly pay arbitration costs pending a decision by the arbitrators. The losing party will pay the costs of the arbitration and the reasonable legal fees and expenses of the prevailing party, as determined by the arbitrators.

Independent Contractors. Customer and ModernRails are independent contractors and shall have no power or authority to assume or create any obligation or responsibility on behalf of each other. MRTC shall not be construed to create or imply any partnership, agency or joint venture.

Expenses; Taxes. Except as otherwise specified in MRTC, each Party will bear its own costs of performance under MRTC. Each Party shall be liable for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state or local governmental entity with respect to the net income recognized by such Party in connection with MRTC and/or the sale of its products and services. Notwithstanding the foregoing, Customer shall be solely responsible for the payment of any applicable sales, use, value added, and other taxes and duties however designated that are levied by any taxing authority related to the sale of products or Services from ModernRails to Customer. Customer shall reimburse ModernRails within thirty (30) days of invoice from ModernRails for any such taxes or duties ModernRails is or was required to remit.

Force Majeure. Neither Party hereto shall be responsible for any failure to perform its obligations under MRTC if such failure is caused by acts of God, war, strikes, pandemics or epidemics (as declared by a regulatory authority), revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall in no event be excused but shall be suspended only until the cessation of any cause of such failure. To the extent ModernRails is able to provide the Purchased Services to Customer, Customer shall not be excused from payment of the Fees due and payable hereunder.

Severability. If any provision of MRTC is found illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of MRTC will not be affected.

Amendments. MRTC may be amended from time to time by ModernRails in its discretion without the consent of Customer when changes in the law or relevant regulations, enforcement authority, or regulatory guidance requires such an amendment.  All other modifications or amendments including, but not limited to Fees or Service Levels will be communicated in writing and posted on the website.  There shall be no amendment or modifications made to any SOWs or Order Forms unless made in writing and executed by both Customer and ModernRails.

Additional Terms. The Parties acknowledge that additional terms and conditions to Agreement may become necessary in order for ModernRails to provide the Purchased Services, which are required (i) to comply with applicable law or (ii) as required by a financial-institution partner or other third-party service provider to provide the Purchased Services (“Additional Terms”). ModernRails will provide notice of such Additional Terms in writing to Customer (to the extent practicable with at least thirty (30) days’ notice). Upon receipt of such Additional Terms, Customer may, within five (5) business days, notify ModernRails of its inability to agree to such Additional Terms and the specific reasons thereto and if the Parties are unable to reach a mutually agreeable solution, Customer may elect to terminate the Agreement or a specifically applicable Order Form without penalty by providing written notice to ModernRails. Unless and until Customer agrees to the Additional Terms, ModernRails may suspend the Services (or an applicable portion of the Services) and may terminate the MRTC by providing written notice to Customer. The Parties agree that any Additional Terms will be incorporated into and made a part of the Agreement if Customer does not object within five (5) business days after receiving notice or upon the Parties reaching a mutually agreeable solution as to the Additional Terms.

Successors and Assigns. MRTC binds and is for the benefit of the successors and permitted assigns of each Party. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign Agreement in its entirety (including all Order Forms and SOWs), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate Agreement upon written notice. In the event of such a termination, ModernRails will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

Survival. Notwithstanding any other provision of MRTC, the representations, warranties, covenants and indemnities of or by either Party contained herein or in any certificate, document or instrument delivered pursuant to the Integration Requirements, or MRTC, including, but not limited to Sections 5, 6, 7, 8, 9, and 12 shall survive the termination of MRTC.

Disclosure of Subprocessors. If ModernRails is required by Data Protection Laws (as defined in the Data Processing Addendum) to disclose any or all of its Subprocessors (as defined in the Data Processing Addendum) directly to Customer, then, prior to such disclosure, ModernRails and Customer will work together in good faith to first determine whether ModernRails can avoid disclosure to Customer. If Customer believes that disclosure directly to Customer is not required, ModernRails shall not disclose its Subprocessors to Customer. If Customer believes that direct disclosure is required, then ModernRails shall ensure that only the identity of those Subprocessors which Customer and ModernRails agree require disclosure will be revealed. In the event ModernRails properly discloses its Subprocessors to Customer pursuant to this provision and the Data Processing Addendum and such Subprocessors was not known to Customer at the time of disclosure as demonstrated by Customer's files and records at the time of disclosure, then Customer agrees that it shall be prohibited from doing business with such Subprocessors, for the purpose of obtaining similar services as those provided through ModernRails under MRTC, at any time during which ModernRails is providing services pursuant to MRTC to Customer.

Miscellaneous. MRTC (including the attachments hereto, which are incorporated by reference), constitute the entire agreement between the Parties regarding the subject matter herein and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, regarding such subject matter. Customer hereby acknowledges it has received a copy of the FinTech Automation Master Service Agreement and hereby subjects itself to the terms and conditions. To the extent that the terms of MRTC conflict with the FinTech Automation Master Service Agreement, with respect to your use of the Services, MRTC will control. Any failure of ModernRails to enforce any right or provision of MRTC or the FinTech Automation Master Service Agreement will not constitute a waiver of such right or provision.