This Customer Agreement (the “Agreement”) governs each Order Form (defined below) and is entered into by and between the entity establishing an Elibrium Platform account (“Customer”) and Elibrium Inc., a Wyoming corporation (“Elibrium”), as of the date the first Order Form is executed or the first access by Customer or any of its users of the Elibrium Platform, whichever is earlier (the “Effective Date”). Any capitalized terms used herein but not defined shall have the meanings ascribed to them in the applicable Order Form. This Agreement incorporates the Elibrium Terms of Service [https://elibrium.io/terms-of-service] and Privacy Policy [https://elibrium.io/privacy] by reference, and Customer’s acceptance of this Agreement constitutes Customer’s acceptance of the Terms of Service and Privacy Policy.

PLEASE REVIEW THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY CLICKING “ACCEPT” OR OTHERWISE ACCESSING OR USING THE ELIBRIUM PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT. ONCE ACCEPTED, THIS AGREEMENT FORMS A BINDING LEGAL COMMITMENT BETWEEN CUSTOMER AND ELIBRIUM AND CUSTOMER MAY NOT ACCESS OR OTHERWISE USE THE ELIBRIUM PLATFORM IF CUSTOMER DOES NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. ANY INDIVIDUAL THAT ACCEPTS THIS AGREEMENT OR OTHERWISE ACCESSES OR USES THE ELIBRIUM PLATFORM ON BEHALF OF OR FOR A COMPANY, BUSINESS OR LEGAL ENTITY (WHICH WILL BE DEEMED TO BE THE CASE IF SUCH INDIVIDUAL ACCESSES OR USES ANY ELIBRIUM PLATFORM USING AN EMAIL ADDRESS ASSOCIATED WITH SUCH COMPANY, BUSINESS OR LEGAL ENTITY), SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL (A) HAS READ AND UNDERSTANDS THIS AGREEMENT, AND (B) IS AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY, BUSINESS OR LEGAL ENTITY.

Background

Elibrium has developed and makes available a spend management platform designed to enable Customer to manage and control its corporate expense and management activities (including the ability to issue virtual payment Cards to Authorized Users via Issuing Bank (each, as defined below) in connection with Customer’s Card program), among other things (the “Elibrium Platform”), and Customer desires to use the Elibrium Platform to augment its existing capabilities.

1. Definitions

1.1 The following terms, when used in this Agreement will have the following meanings:

“Affiliates” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity’s management.

“Authorized User” “Authorized User” means Customer’s employees, contractors, end users or clients or any other persons that Customer allows to use Elibrium’s services through its accounts for the Elibrium Platform (including by granting such person access credentials to account functions or Cards).

“Card” has the meaning assigned to it in the Card Program Terms.

“Card Network” has the meaning assigned to it in the Card Program Terms.

“Card Program Terms” means the Elibrium Card Program Terms attached to this Agreement.

“Confidential Information” means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, “Confidential Information” will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Materials” means any data, content or materials that Customer (including its Authorized Users) submits to its Elibrium Platform accounts.

“Documentation” means Elibrium’s standard usage documentation for the Elibrium Platform.

“Issuing Bank” has the meaning assigned to it in the Card Program Terms.

“Order Form” means, if applicable to Customer, an order form, quote or other similar document that sets forth the specific features of the Elibrium Platform to which Customer is subscribing, pricing, permitted number of Authorized Users and subscription term, in each case as applicable.

“Third Party Platform” means any product, service or platform not provided by Elibrium that Customer elects to use with the Elibrium Platform.

2. Elibrium Platform

2.1 Provision of Elibrium Platform. Subject to this Agreement, Elibrium will make the Elibrium Platform available to Customer pursuant to this Agreement, industry standards, and the applicable Order Form, and hereby grants Customer a non-exclusive right to access and use the Elibrium Platform for its internal business purposes during the applicable subscription term. Customer may permit Authorized Users to use the Elibrium Platform on its behalf. Customer is solely responsible for (i) provisioning and managing its Authorized User accounts, (ii) for its Authorized Users’ actions through, and use of, the Elibrium Platform and any Cards, and (ii) for its and its Authorized Users’ compliance with this Agreement, any Cardholder Agreement and all requirements set forth by Issuing Bank.

2.2 Card Issuing Services via the Elibrium Platform. Customer receiving Card services through the Platform agrees to be bound by the Card Program Terms.

2.3 Data Security. Elibrium will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials. In furtherance of the foregoing, Elibrium will maintain administrative, physical and technical safeguards designed to protect the security of Customer Materials.

2.4 Customer Responsibilities.

(a) Customer acknowledges that Elibrium’s provision of the Elibrium Platform is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Elibrium Platform and notify Elibrium promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Elibrium Platform and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Elibrium Platform, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Elibrium will have no liability for such failure (including under any service level agreement). As between the parties, Customer is responsible for the content and accuracy of Customer Materials.

2.5 Compliance.

(a) Regulatory Compliance. Customer shall comply with all applicable laws and regulations in connection with its (and any individual using the Elibrium Platform via Customer’s account’s) use of the Elibrium Platform, including without limitation the BSA, AML and any counter-terrorist financing laws, anti-bribery and anti-corruption laws, economic sanctions regulations and any other similar laws and regulations. Customer shall not use the Elibrium Platform or permit the issuance or use of any Card in violation of any applicable law or for any unlawful purpose. Customer shall promptly notify Elibrium of any suspected unauthorized use of the Elibrium Platform or Cards, or any other breach of security or compliance related to the Elibrium Platform.

(b) Ongoing Due Diligence. Customer acknowledges that Elibrium and Issuing Bank will conduct ongoing monitoring of Customer’s account and transactions for compliance purposes. Customer agrees to promptly provide any additional information and cooperation that Elibrium or Issuing Bank reasonably requests to ensure compliance with legal requirements (for example, responding to inquiries about specific transactions or business activities, or updating KYC/beneficial ownership information). Elibrium may periodically require Customer to re-certify or update the KYC and related information during the term of this Agreement.

(c) Compliance and Reporting. Customer is responsible for monitoring Card transactions and use of the Elibrium Platform by its Authorized Users. Customer shall implement policies and controls to ensure compliance with the terms of this Agreement and applicable law (for example, internal expense policies for employees using Cards). If Customer becomes aware of any violation of this Agreement by an Authorized User, or any fraudulent or unauthorized activity related to the Elibrium Platform or Cards, Customer shall immediately notify Elibrium and take reasonable steps to stop the activity (such as canceling the relevant Card or removing the user’s access to the Elibrium Platform). Customer is also responsible for submitting any reports or filings required of Customer to regulatory authorities in connection with Customer’s business operations (for example, tax filings, financial reports, currency transaction reports, or other disclosures mandated by law). Elibrium will provide reasonable cooperation by furnishing information in its possession that Customer may need to fulfill its regulatory reporting obligations, but Elibrium is not responsible for making filings on Customer’s behalf unless otherwise expressly agreed.

(d) Cooperation with Audits and Inquiries. Customer shall reasonably cooperate with Elibrium, Issuing Bank, any Card Network, or any regulator in connection with any audit, inquiry, examination, or investigation related to the Elibrium Platform. Upon at least ten (10) business days’ prior written notice, Customer agrees to permit Elibrium or its designated representative to audit Customer’s relevant records and systems to verify Customer’s compliance with this Agreement, provided that any such audit is conducted during normal business hours and does not unreasonably interfere with Customer’s operations. Customer shall also ensure that it can account for and produce records of Card usage and expenses as required by law or by Issuing Bank.

(e) Prohibited Activities. Customer shall ensure that neither it nor any Authorized User uses the Elibrium Platform or any Card for transactions involving any prohibited persons, entities, or activities under applicable sanctions or AML laws (including those on the U.S. Treasury Department’s OFAC list or similar restricted-party lists). Elibrium or Issuing Bank may decline or block any transaction or suspend Elibrium Platform if Elibrium or Issuing Bank determine, in their reasonable discretion, that providing the Elibrium Platform, Card or any particular transaction may violate applicable law or expose any party or Issuing Bank to unacceptable risk.

2.6 Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Elibrium and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

2.7 Third Party Platforms.

(a) The Elibrium Platform may interface with Third Party Platforms, and Customer has the discretion to utilize these Third Party Platforms in conjunction with our Elibrium Platform. The use of Third Party Platforms is at Customer’s own risk. In addition, Customer acknowledges that Third Party Platform providers (including Issuing Banks, Card Networks and regulators) may require changes to the operation of the Elibrium Platform or to the terms of this Agreement. Elibrium may, with prior notice to Customer, modify the Elibrium Platform or this Agreement as necessary to comply with any such requirements of third parties or applicable law. If any such modification has a material adverse effect on Customer, Customer may terminate this Agreement by providing written notice to Elibrium within thirty (30) days of receiving notice of the change. In the event of such termination, Customer will be entitled to a prorated refund of any prepaid fees for the Elibrium Platform not provided due to the termination.

(b) If Customer utilizes any API or integration provided by Elibrium to connect the Elibrium Platform with Customer’s own systems or software, then Customer is responsible for the development and maintenance of such integration. Customer must follow any integration guidelines provided by Elibrium and ensure that its systems and any integrated application meet Elibrium’s security and compatibility requirements. Prior to allowing any of Customer’s integrated applications to connect to the production Elibrium Platform via an API, Customer shall complete any testing and certification process reasonably required by Elibrium to ensure the integrity and security of the Elibrium Platform (for example, sandbox testing and obtaining Elibrium’s approval for the integration’s compliance and security).

3. Fees

3.1 Fees. Customer will pay Elibrium the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the “Payment Period”), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Elibrium within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Elibrium may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

3.2 Late Payment. Elibrium may suspend access to the Elibrium Platform immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Elibrium has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Elibrium.

3.3 Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, “Taxes”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Elibrium. Customer will not withhold any Taxes from any amounts due to Elibrium.

4. Proprietary Rights

4.1 Proprietary Rights. As between the parties, Elibrium exclusively owns all right, title and interest in and to the Elibrium Platform, System Data and Elibrium’s Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, and Customer’s Confidential Information. “System Data” means data collected by Elibrium regarding the Elibrium Platform that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Elibrium Platform.

4.2 Feedback. Customer may from time to time provide Elibrium suggestions or comments for enhancements or improvements, new features or functionality or other feedback (“Feedback”) with respect to the Elibrium Platform. Elibrium will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Elibrium will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided “AS IS” and Elibrium will not publicly identify Customer as the source of Feedback without Customer’s permission.

4.3 Product Improvement and Aggregated Statistics. Customer further agrees that, notwithstanding anything herein, Elibrium is hereby granted the right to aggregate, collect, retain and analyze Customer Materials and other information relating to the performance of the Elibrium Platform and will be free (during and after the term hereof) to (a) use such data and other information to provide and improve Elibrium’s products and services, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

5. Confidentiality; Restrictions

5.1 Confidentiality. Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

5.2 Technology Restrictions.

(a) Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Elibrium Platform; (b) attempt to probe, scan or test the vulnerability of the Elibrium Platform, breach the security or authentication measures of the Elibrium Platform without proper authorization or wilfully render any part of the Elibrium Platform unusable; (c) use or access the Elibrium Platform to develop a product or service that is competitive with Elibrium’s products or services or engage in competitive analysis or benchmarking or for any non-commercial or business purpose; (d) transfer, distribute, resell, lease, license, or assign the Elibrium Platform or otherwise offer the Elibrium Platform on a standalone basis; or (e) otherwise use the Elibrium Platform in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

(b) Without limiting the generality of the foregoing, Customer shall not use the Elibrium Platform in any manner that involves, facilitates, or encourages illegal activities, including but not limited to money laundering, gambling where prohibited by law, or the sale of illegal goods or services. Customer shall not use the Elibrium Platform or Cards to process transactions for any third party outside the scope of this Agreement. Unless expressly permitted by Issuing Bank and applicable law, Customer will not receive or hold funds on behalf of third parties or act as an intermediary between third-party payers and payees through use of the Cards or Elibrium Platform (e.g., Customer will not operate as an unregistered money services business or payment aggregator through the Elibrium Platform).

5.3 Injunctive Relief. In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

6. Warranties and Disclaimers

6.1 Mutual. Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Elibrium Platform.

6.2 Elibrium. Elibrium warrants that the Elibrium Platform will perform materially as described in the Documentation and Elibrium will not materially decrease the overall functionality of the Elibrium Platform during the applicable subscription term (the “Performance Warranty”). Elibrium will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Elibrium fails to do so within 30 days after Customer’s warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Elibrium Platform, in which case Elibrium will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Elibrium Platform. These procedures are Customer’s exclusive remedies and Elibrium’s sole liability for breach of the Performance Warranty.

6.3 Customer. Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Elibrium to use the same as contemplated hereunder.

6.4 DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ELIBRIUM, ON BEHALF OF ITSELF, ISSUING BANK, AND ALL OTHER THIRD PARTY PLATFORM PROVIDERS, DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ELIBRIUM DOES NOT REPRESENT OR WARRANT THAT THE ELIBRIUM PLATFORM WILL BE ERROR-FREE. ELIBRIUM IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS AND DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF. CUSTOMER ACKNOWLEDGES THAT ELIBRIUM IS NOT A BANK, ACCOUNTING FIRM OR LAW FIRM. THE ELIBRIUM PLATFORM, AS WELL AS ANY MATERIALS OR INFORMATION PROVIDED THROUGH THE ELIBRIUM PLATFORM, IS NOT INTENDED TO PROVIDE FINANCIAL, ACCOUNTING, LEGAL, TAX OR OTHER PROFESSIONAL ADVICE. CUSTOMER SHOULD SEEK INDEPENDENT PROFESSIONAL ADVICE FOR ANY SUCH MATTERS. ELIBRIUM’S EMPLOYEES AND AGENTS ARE NOT AUTHORIZED TO PROVIDE FINANCIAL, LEGAL OR TAX ADVICE.

7. Indemnification

7.1 Indemnity by Elibrium. Elibrium will defend Customer against any claim, demand, suit, or proceeding (“Claim”) made or brought against Customer by a third party alleging that the use of the Elibrium Platform as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Elibrium) in connection with any such Claim; provided that (a) Customer will promptly notify Elibrium of such Claim, (b) Elibrium will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Elibrium may not settle any Claim without Customer’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Elibrium in connection therewith. If the use of the Elibrium Platform by Customer has become, or in Elibrium’s opinion is likely to become, the subject of any claim of infringement, Elibrium may at its option and expense (i) procure for Customer the right to continue using and receiving the Elibrium Platform as set forth hereunder; (ii) replace or modify the Elibrium Platform to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Elibrium will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Elibrium Platform by Customer not in accordance with this Agreement; (C) modification of the Elibrium Platform by or on behalf of Customer; (D) Customer Materials, or (E) the combination, operation or use of the Elibrium Platform with other products or services where the Elibrium Platform would not by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Elibrium’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2 Indemnification by Customer. Customer will defend Elibrium against any Claim made or brought against Elibrium by a third party arising out of any Excluded Claims, and Customer will indemnify Elibrium for any damages finally awarded against Elibrium (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Elibrium will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Elibrium’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Elibrium of all liability) and (c) Elibrium reasonably cooperates with Customer in connection therewith.

8. Limitation of Liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 5, OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY (OR ISSUING BANK OR OTHER THIRD PARTY PLATFORM PROVIDER) BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9. Termination

9.1 Term. The term of this Agreement will commence on the Effective Date and continue until terminated as set forth below. The initial term of each Order Form will begin on the Order Form Effective Date of such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will co-terminate with this Agreement.

9.2 Termination. Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach.

9.3 Immediate Suspension/Termination in Special Circumstances. Notwithstanding the foregoing, Elibrium may immediately terminate this Agreement, or suspend the Elibrium Platform in whole or in part, without liability to Customer, under the following circumstances: (i) if Elibrium is required to do so by law or any governmental authority (for example, if providing the Elibrium Platform to Customer becomes unlawful); or (ii) if Elibrium determines in its reasonable judgment that Customer has engaged in fraudulent or illegal activities or is using the Elibrium Platform in a manner that materially violates this Agreement or applicable law and, in Elibrium’s reasonable opinion, such use poses an imminent threat of harm to Elibrium, the Elibrium Platform, or any third party (including Issuing Bank).

9.4 Survival. Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party’s option, any Confidential Information of such disclosing party in the receiving party’s possession or control.

10. General

10.1 Publicity. Customer agrees that Elibrium may refer to Customer’s name and trademarks in Elibrium’s marketing materials and website; however, Elibrium will not use Customer’s name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer’s prior written consent (which may be by email).

10.2 Assignment. Neither party hereto may assign this Agreement without the other party’s prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.3 Amendment; Waiver. No amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties; provided, however, the Card Program Terms may be amended in the manner provided therein. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.4 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.5 Unenforceability. If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.6 Governing Law. In the event of any dispute, claim, or controversy arising out of or related to this Agreement or the Elibrium Platform, the parties shall first attempt to resolve such dispute informally, including, if necessary, by escalation to senior management of each party. This Agreement will be governed by the laws of the State of Wyoming, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.7 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section.

10.8 Entire Agreement. This Agreement comprises the entire agreement between Customer and Elibrium with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Elibrium, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

10.9 Force Majeure. Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyberattacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.10 Government Terms. Elibrium provides the Elibrium Platform, including related software and technology, for ultimate federal government end use solely in accordance with the terms of this Agreement. If Customer is an agency, department, or other entity of any government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Elibrium Platform, or any related documentation of any kind, including technical data, software, and manuals, is restricted by the terms of this Agreement. All other use is prohibited and no rights than those provided in this Agreement are conferred. The Elibrium Platform was developed fully at private expense.

10.11 Interpretation. For purposes hereof, “including” means “including without limitation”.

Corporate Card Program Terms and Conditions

These Elibrium Card Program Terms (“Card Program Terms”) are incorporated into and made part of the Elibrium Customer Agreement between Customer and Elibrium and set forth the terms that govern Customer’s use of the Cards, including the process for obtaining and managing Cards through Customer’s Elibrium Platform account and the issuance and use of Cards. Elibrium may update these Card Program Terms at any time by delivering notice through the Elibrium Platform or to Customer’s email address on file, and Customer’s continued use of Cards will constitute acceptance of the updated terms.

By requesting and using Cards, Customer and each Authorized Card User consents to these Card Program Terms, Elibrium’s Privacy Policy [https://elibrium.io/privacy], and the Issuing Bank Cardholder Agreement [https://elibrium.io/cardholder-agreement], which is hereby incorporated by reference. By linking an external bank account in connection with the Card Program, Customer also consents to the ACH Authorization Agreement [https://elibrium.io/ach-authorization].

1. Definitions

Capitalized terms used but not defined in these Card Program Terms will have the meanings assigned to them in the Elibrium Customer Agreement.

1.1 “Access Information” means collectively a user name, passcode, verification codes, and any other means of verification necessary to access the Services.

1.2 “Administrator” means the person Customer designates to administer the Card Account and act on its behalf in accordance with the terms of the Bank Agreement.

1.3 “Authorized Card User” means an employee or another person over 18 years of age designated by the Administrator as authorized by Customer to receive and use a Card on Customer’s behalf.

1.4 “Card” means the physical or virtual payment cards issued by Issuing Bank to Customer and managed through Customer’s Elbrium Platform account.

1.5 “Card Account” means the account between Customer and Issuing Bank established pursuant to the Issuing Bank Cardholder Agreement.

1.6 “Card Network” means the payment card network operated by Visa, Mastercard, and/or any other card network as may be indicated on the Card.

1.7 “Card Program” means the Elibrium Card Program, which allows eligible Customers to request, use, and manage Cards.

1.8 “Highnote” means Highnote Platform Inc.

1.9 “Disputed Transaction” means a dispute that Customer initiates against a merchant for an unresolved dispute with the merchant or where Customer asserts a Charge is unauthorized.

1.10 “Fees” means the fees payable to Elibrium for the Elibrium Card Program, as they may vary from time to time in accordance with these Card Program Terms. The Fees are disclosed to Customer in the Pricing Schedule. The Fees are deemed accepted by Customer upon Customer’s enrollment in the Card Program.

1.11 “Issuing Bank” means Sutton Bank or another financial institution that issues Cards under the Elibrium Card Program. Unless the context indicates otherwise, references to “Issuing Bank” also include its agents, service providers, and program managers that facilitate the provision of the Cards on behalf of Issuing Bank, including Highnote.

1.12 “Issuing Bank Cardholder Agreement” means the separate terms and conditions governing the Cards and related Card Account issued by the Issuing Bank to Customer or Authorized Card Users, which must be accepted by Customer and Authorized Card Users as required by the Issuing Bank.

1.13 “Pricing Schedule” refers to the schedule of Fees applicable to Customer’s use of these Card Program Terms, which is located at [https://elibrium.io/pricing].

2. Onboarding

2.1 Customer Onboarding. Before accessing the Card Program, Customer will complete Elibrium’s onboarding process. This process includes, but is not limited to, Customer providing all information and documentation reasonably required by Elibrium or Issuing Bank to verify Customer’s identity, corporate existence, ownership, authorized signatories, and to conduct required due diligence (including Know Your Customer (“KYC”) checks and anti-money laundering (“AML”) compliance under the U.S. Bank Secrecy Act (“BSA”) and other applicable laws). Customer represents and warrants that all information it provides during onboarding (and thereafter) will be true, accurate, and up to date. Elibrium reserves the right to refuse to onboard or provide the Elibrium Platform to Customer if Customer fails to satisfy any onboarding requirements or due diligence checks.

2.2 Authorized Card User Onboarding. Each prospective Authorized Card User must be identified and, if required by Issuing Bank or applicable law, must satisfy KYC/AML screening before receiving a Card or access to the Elibrium Platform. Customer will collect and provide to Elibrium (or directly to the applicable Issuing Bank, as directed) all information necessary to verify the identity of each Authorized Card User and to facilitate any required screenings. Customer represents and warrants that it has obtained any necessary consents from Authorized Card Users to share their information with Elibrium and Issuing Bank for such purposes. Elibrium or Issuing Bank may reject any applicant or require additional information for any Authorized Card User who does not pass required screening criteria. Customer will additionally ensure that each Authorized Card User accepts and agrees to (i) the Terms of Service located at https://elibrium.io/terms-of-service, and (ii) any the Issuing Bank Cardholder Agreement before activating or using a Card.

3. Requesting and Using Cards

3.1 The Card Program is available only for commercial or business purposes to eligible business entities. By requesting Cards through the Card Program, Customer represents it meets the eligibility requirements and that Customer, each Administrator and each Authorized Card User agree to be bound by these Program Terms, the Elibrium Privacy Policy and the Issuing Bank Cardholder Agreement. Customer acknowledges and agrees that Issuing Bank has the ultimate authority to determine Customer’s eligibility for the Cards in its sole discretion. Elibrium or Issuing Bank may terminate or suspend Customer’s access to the Card Program (or any portion, aspect, or feature of the Card Program) at any time in their sole discretion, with or without notice.

3.2 Administrators may request Cards for Authorized Card Users through Customer’s Elibrium Account but may only request Cards for and provide Cards to individuals who are employees or affiliated with or authorized by the Customer. Cards may be denied or canceled due to changes in Issuing Bank’s policies, as required by law, or for other reasons Elibrium determine are appropriate under the circumstances. Customer is solely responsible for any actions undertaken by the Authorized Card Users with respect to the Cards, whether or not authorized by Customer. Customer will notify Elibrium promptly regarding any changes to the Authorized Card Users.

3.3 The Cards may be used for bona fide business purpose transactions only and use of the Cards must comply with all Card Network rules and applicable laws. Cards may not be used for individual, consumer or household purposes. Cards may be used at merchants worldwide where Cards are accepted. Cards may not be used for purchases from the Customer itself or for making payments to the Customer or its affiliates. Transactions conducted using a Card may be denied or reversed by Issuing Bank (including its service provider), the Card Network, the merchant for any reason, and Elibrium will not be liable to Customer for any losses or damages caused by a transaction denial or reversal.

3.4 Funding and Settlement. Customer will ensure that all charges incurred on Cards are timely funded and paid in accordance with the Issuer Cardholder Agreement and any instructions provided by Issuing Bank or Elibrium. Customer may be required to pre-fund an account with Issuing Bank or otherwise ensure sufficient funds are available for transactions. Customer will comply with all funding, payment, and settlement requirements communicated by Issuing Bank or Elibrium. If Customer fails to fund or pay amounts owed for Card transactions, Issuing Bank may suspend Cards or take other action, and Customer will be responsible for any resulting fees or consequences.

3.5 Card Network Requirements. Customer will comply with all applicable bylaws, rules, and regulations of the payment Card Networks (e.g., MasterCard) in connection with the Elibrium Card program. Customer will not take any action that would cause Issuing Bank or Elibrium to be in violation of Card Network rules. Elibrium may from time to time communicate certain Card Network mandates or updates to Customer, and Customer agrees to promptly comply with any such requirements.

4. Spending Limits and Card Management

4.1 If Customer is issued a debit card or prepaid Card, Customer must make a deposit with Issuing Bank before being able to use the Cards. The aggregate amount available for charges on all Cards associated with Customer’s Elibrium Account at any given time will be determined by the available funds in Customer’s Card Account held by Issuing Bank.

4.2 If Customer is issued a Card that is a charge card on which Issuing Bank extends credit to Customer, Elibrium and Issuing Bank will establish an aggregate credit limit for all the Cards issued to Customer. The aggregate credit limit, the length of the statement period and the due date applicable to Customer’s Elibrium Account can be found on the Elibrium Platform. Credit limits, the length of statement period and/or the due date may be modified at any time with or without advance notice to Customer based on risk and other credit considerations, including temporary increases or decreases to Customer’s spending limits or reducing spending limits to $0. Administrators may set Authorized Card User-specific limits or spending controls through the Elibrium Account, but the aggregate spending limit for all Authorized Card Users may not exceed the aggregate credit limit established for Customer.

4.3 In addition, Elibrium and Issuing Bank may establish limits on merchant categories, per-transaction amounts, numbers of charges, and may restrict use outside the country of issuance. Administrators may also configure individual Cards to limit transaction amounts and merchant acceptance. Limitations on the types of merchants with which Authorized Card Users conduct transactions may be applied through the use of merchant category codes (MCCs). MCCs are chosen by merchants and are assigned by the Card Network. Elibrium has no responsibility for inaccurate or inappropriate MCC assignments. Only charges submitted for authorization are subject to controls, and those controls can only be enforced when the merchant provides sufficient information as part of the authorization.

Notwithstanding the foregoing, Customer agrees to pay for all transactions on Cards issued to Customer’s Authorized Card Users regardless of whether such charges are within or outside the restrictions or control parameters established for each Card.

5. Card Security

Customer will be asked to create an online username and passcode to access and manage the Cards, as well as a PIN, challenge questions, and any other security information that Elibrium deems necessary (“Access Information”). Customer may be requested to provide contact information to receive one or more verification codes necessary to access the Card services. Customer agrees to maintain all Access Information secure and confidential and disclose it only to the Authorized Card Users. Customer is solely responsible for all actions and communications undertaken or transmitted using Access Information. Elibrium is not responsible if Customer’s Access Information is used by an unauthorized person or misappropriated. Customer must notify Elibrium immediately of any unauthorized use. Elibrium may deny Customer’s use of Card services if Customer shares Access Information with any third party or if Elibrium believes it has been compromised.

In addition, Customer agrees to promptly notify Elibrium and take appropriate measures to prevent unauthorized transactions when a Card is lost, stolen, breached, or needs to be replaced. In such cases, Administrators may request the issuance of replacement Cards through Customer’s Elibrium Account. Customer agrees to, and will cause its Administrators and Authorized Card Users to, keep the Axinoa Account and Cards secure and only provide access to individuals that Customer has authorized. Customer will immediately disable User access to the Cards if Customer knows or believes its Elibrium Account or Cards have or may have been compromised or stolen or have been or may be misused, and Customer will promptly lock such Card and notify Elibrium of any known or reasonably suspected unauthorized access or use. Customer is ultimately responsible for financial losses caused by Administrators, Users, or other persons given access to the Cards or the Elibrium Account, except as provided by Card Network rules.

6. Disputed Transactions

If Customer has a dispute with a merchant or seller regarding the product or service that is purchased by using the Cards, Customer should contact the merchant or seller to resolve the dispute. If the transaction at issue is not appropriately addressed with the merchant or seller, then Customer may submit a Disputed Transaction request of the transaction by contacting Elibrium. Customer acknowledges that Issuing Bank and Elibrium are subject to the Card Network rules with respect to Disputed Transactions and may not be able to successfully recover from the merchant or seller of the Disputed Transaction. If Customer claims a transaction was unauthorized or a periodic statement contains any error, Customer should contact Elibrium immediately. Customer must report any Disputed Transaction no more than 60 days after the earlier of the date Customer electronically accessed the Card Account, if the error could be viewed in the Card Account electronic transaction history, or the date Elibrium or Issuing Bank sent the FIRST written transaction history on which the error appeared. If the dispute is valid after reasonable investigation, Issuing Bank and Elibrium will credit the amount of the Disputed Transaction back to Customer’s Card Account. Customer hereby assigns and transfers to Issuing Bank and Elibrium any rights and claims, excluding tort claims, that Customer may have against any merchant or seller for any Disputed Transaction fully or partially credited to Customer’s Card Account. Customer acknowledges that its rights regarding Disputed Transactions are against the Bank and subject to applicable laws, Card Network rules and the Issuing Bank Cardholder Agreement.

7. Fees and Cashback

In addition to any Fees and charges due to Issuing Bank under the Issuing Bank Cardholder Agreement, Customer will pay applicable Fees to Elibrium as shown on the Pricing Schedule. All Fees are deducted from funds in the Card Account when the transaction appears in the Elibrium Account. Elibrium reserves the right to change Fees and update the Pricing Schedule upon reasonable advance notice. All Fees are denominated in the currency shown on the Pricing Schedule.

Customer may be eligible to earn cash back on net qualified purchases (less credits, returns, cancellations, and adjustments) on the Card(s) at the rate shown on the Pricing Schedule. Cash back rebates have no maximum limit. Balance transfers, cash advances, cash-equivalent transactions (e.g., money orders or gift cards), and certain other purchases/transactions do not earn rebates. Cash back rebates are calculated on net qualified domestic transactions settled during the previous calendar month and credited to Customer’s Card Account balance on or about the 30th day of the following month. Customer is not eligible for cash back rebates if any Card or Card Account is cancelled or closed, has a negative balance, or has an unpaid outstanding balance. Elibrium reserves the right to determine in its sole discretion whether a particular transaction qualifies for cash back rebates and may change or discontinue the cash back program at any time without notice to Customer. If any transaction on which Customer has received cash back is later returned, reversed, charged back, reduced, or cancelled, Customer authorizes Elibrium to deduct the amount of such cash back by debiting Customer’s Card Account (or reverse the cash back credit from Customer’s Card Account).

8. Periodic Statements and Payments

If Customer is issued Card that is a charge card, Customer is responsible for payment in full of the entire then-due balance on or prior to the due date, including all charges, fees, and fines, as shown on the periodic statement. Elibrium will provide Customer a periodic statement at the end of each statement period. The start and end date of Customer’s statement period will be visible on the Elibrium Platform in the Customer Elibrium Platform account.

Customer may make payment in the methods provided in the Issuing Bank Cardholder Agreement and enabled on the Elibrium Platform, which may include one-time and recurring ACH payments from Customer’s bank account linked to the Elibrium Platform account.

If any payment is returned or denied for insufficient funds, Customer may be assessed a returned payment fee and, if applicable, a late fee, each in accordance with the Issuing Bank Cardholder Agreement and Pricing Schedule as it may be updated from time to time. In addition, if Customer fails to pay its outstanding balance in full on the due date, Customer’s Card Account may be closed by Issuing Bank immediately. Customer authorizes Elibrium to report Customer’s payment history and performance to one or more third-party data providers including commercial credit bureaus.

9. Miscellaneous

9.1 Issuing Bank Relationship. As a condition of Customer’s participation in the Elibrium Card Program, Customer authorizes Elibrium to share all information about Customer and its business and transaction information related to Customer’s use of Cards with Issuing Bank. By enrolling in the Elibrium Card Program, Customer authorizes Elibrium to act in Customer’s name and for Customer’s account with Issuing Bank. By approving or initiating a payment using the Cards, Customer authorizes Elibrium to provide instructions to Issuing Bank to initiate and complete such payment on Customer’s behalf. Notwithstanding the foregoing, Elibrium will not be responsible for administration and execution of payments to be made to the Card Account. Elibrium is not liable for any action or omission of Issuing Bank.

Elibrium makes no representation or warranty regarding the Card services. Elibrium does not guarantee Card acceptance by any merchant, authorization of any transaction, or continued availability of the Card services by Issuing Bank. Elibrium is not liable for losses if a merchant refuses the Card, a transaction is not authorized, or the Bank/Card Network cancels or suspends a Card. Elibrium is not liable for Customer’s loss or inability to use the Card.

9.2 Prohibited Activities. The Cards may only be used for bona fide business expenses. Customer may not use the Cards to conduct the following transactions, among other things:

• Consumer/personal transactions;

• Payments to or from blocked/sanctioned persons, entities, or countries (e.g., OFAC);

• Activities violating any law or regulation;

• Transactions relating to: (i) tobacco products; (ii) prescription drugs/devices; (iii) controlled substances or products that present consumer safety risks; (iv) drug paraphernalia; (v) weapons or devices designed to cause injury; or (vi) goods/services that promote illegal activity, are sexually oriented, promote hate/violence, defame/abuse/harass, contain obscene/indecent content, infringe intellectual property or privacy/publicity rights;

• Gambling transactions;

• Transactions supporting pyramid/Ponzi schemes, lay-away systems, off-shore banking, debt financing via credit card; money laundering/terrorist financing; sale of traveler’s checks or money orders, currency exchange, check cashing; credit repair/debt settlement services; and

• Tax payments and court-ordered payments.

9.3 Termination. Unless stated otherwise, these Card Program Terms continue until terminated by either party. Customer may terminate these Card Program Terms by requesting cancellation of all Cards issued under Customer’s Card Account. Elibrium may terminate these Card Program Terms at any time and without notice if Customer or any Authorized Card User fails to comply with these Card Program Terms and/or the Issuing Bank Cardholder Agreement, at Issuing Bank’s request, or if the Issuing Bank ceases to issue and service Cards. Termination is without prejudice to obligations or rights accrued prior to termination and will not affect any provision intended to continue after termination.

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