Terms and Conditions

Emtech
December 17, 2021

Please read these Terms of Service (the “Terms”) and our Privacy Policy (https://emtech.com/privacy-policy/) (“Privacy Policy”) carefully because they govern your (“you” or “your”) use of the website located at emtech.com ] (the “Site”) and financial technology services accessible via the Site offered by EMTECH SOLUTIONS Inc. (“EMTECH”). To make these Terms easier to read, the (i) Site, (ii) EMTECH’s regulatory sandbox platform (the “Sandbox”) and related application programming interfaces (including test and live versions) and associated publisher tools and documentation (collectively, “APIs”) and (iii) any other products, services or platforms that EMTECH may make available to you from time to time that references the Terms are collectively called the “Services.”

1. Agreement to Terms. By accessing and using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not access or use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms and the execution, delivery and performance of these Terms have been duly authorized by all necessary actions (and do not violate the applicable entity’s organizational documents). In that case, “you” and “your” will refer to that entity.

2. Privacy Policy. Please review our Privacy Policy, which also governs your use of the Services, for information on how we collect, use and share your information.

3. Other Terms. If you are accessing and using the Sandbox in your capacity as a regulator or central bank account holder, whether a hosted version or local version of the Sandbox, then your use of the Services is also subject to the Master Agreement between you and EMTECH. If there is any conflict between these Terms and the Master Agreement, the Master Agreement will control. If you are accessing and using the APIs in your capacity as a financial technology business user, then your use of the Services is also subject to the Fintech API Policy (https://app.emtech.com/api-terms) (the “Fintech API Policy”). The Fintech API Policy describes the order of precedence between these Terms, the Fintech API Policy and additional terms applicable to a given API, if any.

4. Changes to these Terms or the Services. We may update the Terms from time to time at our sole discretion. If we do, we’ll let you know by posting the updated Terms on the Site, and/or may also send other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, it means that you accept and agree to the changes. If you don’t agree to be bound by the changes, you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion

5. Ownership; Services. As between you and EMTECH, EMTECH (and its licensors) owns all rights, title and interest in and to Services, including all intellectual property and proprietary rights therein and thereto. Subject to the terms and conditions these Terms (including Section 3), EMTECH hereby grants to you a revocable, non-exclusive, limited, non-transferable and non-sublicensable right to access and use the Services, solely for your internal business purposes and solely in strict accordance with these Terms. Any rights with respect to the Services not expressly granted by these Terms are reserved by EMTECH.

6. Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services (“Feedback”). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.

7. Use Restrictions and EMTECH’s Enforcement Rights. You agree not to use or allow others to use, the Services in any manner beyond the scope of the functionality offered by the Services, except as otherwise expressly allowed in these Terms, including in Section 5. Without limiting the foregoing, you expressly agree not to do the following with respect to the Services: (i) reverse engineer, decompile, disassemble, re-engineer or otherwise create or attempt to create or permit, allow, or assist others to create the source code of the Services or its structural framework, (ii) create Internet “links” to the Services or “frame” or “mirror”the Services or any other individual element within the Services, EMTECH’s name or any EMTECH trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, in each case, without EMTECH’s express prior written consent, (iii) access or use the Services for competitive analysis or benchmarking purposes, or to otherwise develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services, (iv) sublicense, subcontract, translate or sell any rights to the Services, (v) use any robot, spider, site search or retrieval mechanism or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services, (vi) harvest or collect information about or from other users of the Services, (vii) probe, scan or test the vulnerability of the Services, nor breach the security or authentication measures on the Services or take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the Services, (viii) modify or create derivative works of the Services, (ix) access, tamper with, attempt to gain unauthorized access to the Services or its related systems or networks, (x) use the Services in whole or in part for any illegal purpose or use the Services in a manner that violates any applicable law, rule or regulation, (xi) use any meta tags or other hidden text or metadata utilizing an EMTECH trademark, logo URL or product name without EMTECH’s express prior written consent, (xii) use the Services or content or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not expressly permitted herein or other terms and conditions that apply to you (as set forth in Section 3), (xiii) forge any TCP/IP packet header or any part of the header information in any email or other posting, or in any way use the Services to send altered, deceptive or false source-identifying information, (xiv) interfere with, or attempt to interfere with, the access of any user, host or network, including sending a virus, overloading, flooding, spamming or mail-bombing the Sandbox, (xv) impersonate or misrepresent your affiliation with any person or entity, or (xvi) facilitate or encourage any violations of this Section 7.

You further expressly agree to take all reasonable precautions to prevent unauthorized or improper use of the Services

EMTECH is not obligated to monitor access to or use of the Services. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms (and any other terms or conditions that reference these Terms) and to comply with applicable law, rules or regulations. We have the right to investigate violations of these Terms (and any other terms or conditions that reference these Terms) or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

8. Links to Third Party Websites or Resources. Certain features and functionalities within the Services as we determine in our sole discretion may include or otherwise also allow you and other users to interact with, access and/or use compatible third-party services, products, data, technology, websites and content (collectively, “Third Party Services”) through the Services. You agree that EMTECH does not provide any aspect of the Third Party Services and is not responsible for (i) the accuracy, support or maintenance of such Third Party Services or (ii) any compatibility issues, errors or bugs in the Services or Third Party Services caused in whole or in part by the Third Party Services or any update or upgrade thereto.

9. Equipment. As between EMTECH and you, you are responsible for obtaining and maintaining all computer hardware, software, communications and office equipment needed to access and use the Services, and for paying any associated third-party access expenses.

10. Termination. We may suspend or terminate these Terms, or your access to and use of the Services, including suspending access to or terminating your account, if applicable, at our sole discretion, for any reason, at any time and without notice, liability or other obligation to you, including if we suspect that you breached any term or condition of these Terms (or any other terms or conditions that reference these Terms). Upon any termination, discontinuation or cancellation of these Terms, the Services or your account, the following Sections will survive: 2, 3, 5, 6, 11, 12, 13 and 14.

11. Warranty Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THE MASTER AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, EMTECH EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EMTECH MAKES NO WARRANTY THAT THE SERVICES OR OPPORTUNITIES OFFERED THEREIN WILL MEET OR SATISFY YOUR EXPECTATIONS, ASSUMPTIONS OR REQUIREMENTS OR THAT SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. EMTECH MAKES NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR MATERIALS ON OR ASSOCIATED WITH THE SERVICES PROVIDED BY OR ON BEHALF OF IT. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND DISCRETION.

12. Indemnity. You will indemnify and hold EMTECH and its officers, directors, employees and agents, harmless from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (a) your access to or use of the Services, or (b) your violation of these Terms.

13. Limitations of Liability.

(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EMTECH NOR ITS SERVICE PROVIDERS INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EMTECH OR ITS SERVICE PROVIDERS HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE

(b) TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EMTECH’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID OR ARE PAYABLE BY YOU TO EMTECH FOR USE OF THE SERVICES IN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO EMTECH, AS APPLICABLE.

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EMTECH AND YOU.

14. General Terms.

(a) Entire Agreement; Severability. Subject to Section 3, these Terms, together with the Privacy Policy, constitute the entire and exclusive understanding and agreement between EMTECH and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between EMTECH and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

(b) Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York, NY and EMTECH and you each irrevocably consent to the personal jurisdiction and venue therein

(c) Assignment. Except where provided by applicable law in your jurisdiction, you may not assign or transfer these Terms, by operation of law or otherwise, without EMTECH’s prior written consent. Any attempt by you to assign or transfer these Terms absent our consent or your statutory right, without such consent, will be null. EMTECH may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(d) Independent Contractor. You agree and acknowledge that you and EMTECH are independent contractors and nothing in the Terms will be deemed to create any agency, employee-employer relationship, partnership, or joint venture between you and EMTECH. You will not have or represent that you have the right, power or authority to bind, contract or commit EMTECH or to create any obligation on behalf of EMTECH without its express prior written consent.

(e) Notices. Any notices or other communications provided by EMTECH under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted

(f) Waiver of Rights. EMTECH’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of EMTECH. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

(g) Government Regulations. You will not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction you operate or do business.

(h) U.S. Government End Users. The Services were developed solely at our private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these Terms fail to meet the U.S. government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue its use of the Services.

15. Contact Information. If you have any questions about these Terms or the Services, please contact EMTECH at info@emtech.com.