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|1.||Agreement & Purpose|
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| ||Agreement|| ||This Agreement is made by and between: (1) Credebt Exchange Limited, a private limited liability company incorporated in Ireland with registered number 501210, having its registered office at Fitzwilliam Hall, Dublin 2, Ireland (hereinafter referred to as "Credebt Exchange") as operator and owner of the Exchange, and (2) the Member.|
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|1.1||Property|| ||Each Member acknowledges that the Credebt Exchange Intellectual Property is the property of Credebt Exchange (or its licensors) and is protected by applicable copyright, patent, trademark, database rights and other Intellectual Property Rights laws.|
Except as provided in this Agreement, the Member may not sub-licence, reproduce, transmit, sell, display, distribute, publish, broadcast, establish any hyperlink to, provide access to, circulate, modify or commercially exploit in whole or in part any part of the Credebt Exchange Intellectual Property in any manner without the prior written consent of Credebt Exchange. The Member specifically and unconditionally agrees and covenants not to copy or emulate the Credebt Exchange Intellectual Property in any way. The Member shall not, and shall not permit others, to edit, copy, modify, reverse engineer, disassemble, decompile, or otherwise seek to discover or derive the source code, proprietary logic, design or structure of the Credebt Exchange Intellectual Property into its own services, products, inventions, works or intellectual property.
Except as expressly authorised in this Agreement, the Member shall not have any right, title or interest in or to the Credebt Exchange Intellectual Property. The Member shall not use any of the trademarks, service marks, logos or trade names of, or used by Credebt Exchange in connection with the Exchange, the Exchange Services or any Credebt Exchange Intellectual Property associated therewith without the prior written consent of Credebt Exchange.
Credebt Exchange represents and warrants that: (i) it owns the Exchange Services (which for avoidance of doubt shall include the Exchange and any software, or software services, provided in relation to the Exchange Services), or has authority (without further consent of any third party) to provide the Exchange Services to the Member; and (ii) no portion of the Exchange Services owned by Credebt Exchange will violate any Intellectual Property Rights of any third party.
During the term of this Agreement, should the Member’s right to continue to use the Exchange be enjoined by a court because the Exchange is declared to infringe any Intellectual Property Rights of any third party, and the Member is not otherwise in material breach of this Agreement, Credebt Exchange may, in its discretion, and at no cost to the Member (other than it continuing obligations to pay fees, if any, provided for hereunder):
(i) procure for the Member the right or license to continue to use the Exchange;
(ii) modify the Exchange to render it non-infringing but substantially functionally equivalent to the Exchange prior to such modification; or
(iii) if the alternatives described in paragraphs (i) and (ii) above are not commercially practicable, Credebt Exchange may terminate the related Exchange Services and the applicable portion of this Agreement without any liability to the Member for such termination.
Each Member authorises Credebt Exchange to use and disclose the User Data pursuant to the terms of this Agreement in connection with provision of the Exchange Services to the Member. Credebt Exchange acknowledges that as between Credebt Exchange and the Member, the Member is the owner of all right, title and interest in the User Data.
Each Member acknowledges and agrees that Credebt Exchange may, in its discretion, disclose, transmit, publish or disseminate Market Data to any Member, Authorised User, any publisher of the data or information with whom Credebt Exchange has a written agreement and any other Persons.
Credebt Exchange grants to the Member, on the terms of this Agreement, a non-exclusive licence to use the Information for the sole use of the Member. The Member may download this Agreement, the Information and any Credebt Exchange Documents and print out hard copies for its reference, provided that it does not remove any copyright or other notices contained therein or any hyperlink or other reference to any such notice.
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|1.2||Purpose|| ||Credebt Exchange operates the Exchange to facilitate the sale and purchase by Members of invoices issued for the supply of goods and services and such invoices, so offered, are fixed value Exchange Traded Receivables or "ETR". |
To facilitate the sale and purchase of ETR, each Member will appoint Credebt Exchange to act as its agent to select, price and market the Eligible ETR, to document, process and transfer the Purchase Price, and to provide the services necessary to confirm, approve and otherwise verify and document the transaction. Credebt Exchange also provides certain Exchange Services to Members.
As operator of the Exchange, Credebt Exchange has the power and authority to regulate its settlement and trading facilities to ensure that the Exchange and the Exchange Services are not used for any improper purpose, and to establish and enforce rules and procedures to reduce systemic risk and facilitate the orderly trading of ETR through the Exchange by Members. This includes the discretionary use of algorithms and methodologies to ensure the optimum price, volume and liquidity dynamics across the Exchange.
This Agreement specifies the process by which a Person may become a Member of the Exchange and the terms and conditions on which Credebt Exchange will offer access to the Exchange and Exchange Services, which shall be binding on all Members.
The provisions of this Agreement apply to the Exchange Services provided by Credebt Exchange to the Member and the Member's use of the Exchange and the Exchange Services.
ETR ARE NEITHER A FINANCIAL INSTRUMENT NOR AN INVESTMENT INSTRUMENT AND CREDEBT EXCHANGE IS NOT REGULATED BY THE CENTRAL BANK OF IRELAND AS A RESULT OF OPERATING THE EXCHANGE AND PROVIDING THE EXCHANGE SERVICES.
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|1.3||Membership|| ||Any Person desiring to become a Member of the Exchange shall submit a Membership Application and a signed Master Agreement to Credebt Exchange.|
All applications for Membership are subject to approval by Credebt Exchange, in its sole discretion, and Membership shall be effective at such time as may be determined by Credebt Exchange. An applicant for Member status shall have no recourse against Credebt Exchange in the event that its application to become a Member is rejected by Credebt Exchange.
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|1.4||Authorised User|| ||Each Member shall appoint an Authorised User to be its authorised representative in respect of all activities conducted by the Member in relation to the Exchange and the Exchange Services. Each Member must provide Credebt Exchange with the current contact details and other requested information for its Authorised User so that Credebt Exchange is able to immediately contact the Authorised User.|
The use of the Exchange and the Exchange Services provided to a Member requires a minimum of one Authorised User. Each Member shall not permit use of the Exchange and the Exchange Services by anyone other than an Authorised User, without the prior consent of Credebt Exchange.
Each Member must ensure that all activities conducted by its Authorised User in relation to the Exchange and the Exchange Services comply with the terms and conditions of this Agreement.
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|1.5||Security Procedures|| ||In order to access the Exchange, each Member shall use, and shall ensure that its Authorised User shall use, the Security Procedures. The Member agrees that any User Data received by and any action taken through the Exchange pursuant to use of the Security Procedures is authentic and may be relied upon by Credebt Exchange and that the Member will not repudiate such User Data, unless Credebt Exchange has negligently or wilfully disclosed such Security Procedures to a Person other than an Authorised User of the Member.|
Each Member shall be responsible for protecting and securing the Security Procedures and other security processes and devices that may be provided by Credebt Exchange and shall ensure that only its Authorised User will have access to the Exchange. The Member shall, and shall ensure that each Authorised User shall, safeguard and keep confidential all of the Security Procedures.
In the event of any breach of the Security Procedures relating to the Exchange, including use of the Exchange by any unauthorised Person, the Member shall notify Credebt Exchange immediately by email and by telephone using the prescribed procedures available on the Exchange. Credebt Exchange may immediately suspend access to the Exchange by any Member and any Authorised User until any such breach has been secured to the reasonable satisfaction of Credebt Exchange. Credebt Exchange will not be liable for any loss as a result of any Member or any Authorised User not being able to access the Exchange.
The Member shall be responsible for any actions taken by any Persons using the Security Procedures, except for those actions resulting from the unauthorised use of the Security Procedures arising out of or related to Credebt Exchange’s negligence or wilful misconduct.
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|1.6||User Equipment & Software|| ||Each Member shall be solely responsible for the procurement, use, compatibility and maintenance of all equipment, software and/or facilities not provided by Credebt Exchange. Each Member shall be liable for all services and costs to troubleshoot difficulties in the provisioning of the Exchange Services caused by equipment or software not provided or authorised by Credebt Exchange.|
In the event that Credebt Exchange provides any software, or software services, to any Member in connection with any of the Exchange Services, such Member shall be bound by, and use such software, or software services, in accordance with, any and all terms and conditions applicable to such software, or software services, whether those terms and conditions are in electronic form (including, but not limited to, in the form of a "click-wrap agreement"), a "shrink-wrap agreement" or some other form. In no event shall Credebt Exchange be liable for any damages of any kind (including, but not limited to, any indirect, special, consequential or punitive damages of any kind, even in the event that it is advised of the possibility that such damages may arise, occur or result) that arise or result from, or are related to, any software, or software services, that the Member uses in connection with the Exchange Services that Credebt Exchange does not own (even in the event that Credebt Exchange provides it to the Member).
|1.7||Confidentiality|| ||During and after this Agreement, Credebt Exchange and each Member shall keep confidential this Agreement and all other Confidential Information disclosed or made available, directly or indirectly, by the disclosing party or its employees, officers, representatives or advisers to the receiving party and each of its employees, agents, servants, sub-contractors and advisers.|
Confidential Information does not include any information which one Party knew before the other Party disclosed it to that Party; which has become publicly known through no wrongful act of either Party, or either Parties’ employees or agents; or which either Party developed independently, as evidenced by appropriate documentation; or which is required to be disclosed by law; or as otherwise agreed between the parties.
Each Party undertakes that it shall not at any time disclose to any Person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other Party, except that each Party may disclose the other Party's Confidential Information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the Party's obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other Party's Confidential Information comply with this Section; and
(ii) as may be required by law, court order or any governmental or regulatory authority.
Notwithstanding anything in this Agreement to the contrary, the Purchaser, the Servicer and the Document Agent may disclose any Confidential Information received in connection with the transactions contemplated by this Agreement relating to the Traded ETR: (a) pursuant to any law, rule, regulation, direction, request or order of any judicial, administrative or regulatory authority or in connection with any legal proceedings, (b) to the relevant Debtor, to the extent required to service, administer, collect and perfect the sale of the Receivables Property relating to such Debtor; (c) to any actual or prospective assignee, transferee or participant of such Person, (d) to any securitisation company that the Purchaser may use from time to time, (e) to any Conduit Assignee, (f) to any rating agency, (g) to any placement agent, credit enhancement provider (including, without limitation, the issuer of any financial guaranty or trade credit insurance policy) or liquidity provider or any other agent of any Conduit Assignee, (h) any purchaser of securities issued by a Conduit Assignee; and (i) to any director, employee, agent, representative, auditor or counsel of the Purchaser, the Servicer or the Document Agent or of any of the foregoing.
No Party shall use any other Party's Confidential Information for any purpose other than to perform its obligations under this Agreement.
Each Party agrees that breach or threatened breach of any duty in this Section is likely to result in substantial and immediate irreparable harm to the other Party inadequately remedied by monetary damages, and that the injured Party shall be entitled to seek injunctive relief for any such breach or threatened breach, in addition to any other remedy to which such Party is otherwise entitled.
Notwithstanding anything in this Agreement to the contrary, each Party shall comply with all privacy and data protection laws, rules and regulations which are or which may in the future be applicable to the terms of this Agreement. In the event that Credebt Exchange must collect, use or disclose any personal information in providing the Exchange Services to the Members, each Member warrants and represents that it has obtained, on behalf of Credebt Exchange, all required consents from any individuals with respect to the use or disclosure of such information as are required for the purpose of rendering the Exchange Services. Without limiting the generality of the preceding sentence, each Party agrees that it will not use nor disclose to any other Party any non-public personal information which it receives from a financial institution in connection with this Agreement, except in accordance with this Agreement.
This Section shall survive the termination of this Agreement.
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|2.||Additional Terms & Conditions|
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|2.1||Electronic Signature|| ||Any document including User Data transmitted pursuant to this Agreement shall be considered "in writing" and if any of such document contains an unique electronic identification or Digital Certificate it shall be considered to have been "signed" and constitute an "original" when printed from electronic files or records established and maintained in the normal course of business.|
The use of a Digital Signature, issued through, or from the Exchange will have the same legally binding affect as the use of a handwritten signature and the Parties agree to the use of either device in execution of this and any other Credebt Exchange Documents in accordance with the Electronic Commerce Act, 2000 of Ireland.
|2.x||All other terms|| ||All other terms and conditions apply to registered Members of the Exchange on completing the application process in accordance with the Credebt Exchange® Master Agreement.|