ELIBRIUM CORPORATE EXPENSE CARD PROGRAM

Effective Date 11/22/2023

Thank you for your interest in the Elibrium Corporate Expense Card Program (the “Program”) available through our website athttps://www.elibrium.io(“Website”). The access to and use of the Program, the Website and related services are offered by Elibrium, Inc., a Wyoming corporation (“Elibrium”, “we”, “our” or “us”), subject to the terms and conditions set forth below.

PLEASE READ THESE TERMS AND CONDITIONS (THESE “TERMS”) CAREFULLY. THESE TERMS, AS UPDATED BY US FROM TIME TO TIME, TOGETHER WITH OUR PRIVACY POLICY, PRICING SCHEDULE AND ANY OTHER TERMS AND CONDITIONS THAT APPLY TO THE SERVICES, ARE A LEGAL AGREEMENT BETWEEN YOU AND US. THESE TERMS GOVERN YOUR ACCESS AND USE OF THE PROGRAM, INCLUDING IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. BY ACCESSING THE WEBSITE OR USING THE PROGRAM, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS CAREFULLY, UNDERSTAND THEM AND ACCEPT THEM IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE PROGRAM.
We reserve the right to change or modify these Terms from time to time in our sole discretion. We will post on the Website or otherwise make available to you any changes to these Terms. The date of the latest changes will be indicated at the top of the document. Your continued use of the Services following the posting or other distribution of changes will mean that you agree to be bound by such changes.
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1. DEFINITIONS
2. OVERVIEW OF THE SERVICES
3. CARDS
4. OPERATION OF THE SERVICES
5. OWNERSHIP AND INTELLECTUAL PROPERTY
6. INDEMNITY, WARRANTY AND LIMITATION OF LIABILITY
7. TERMINATION
8. CONSENT TO ELECTRONIC TRANSACTIONS AND DISCLOSURES
9. MISCELLANEOUS TERMS

1.DEFINITIONS

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. “Account Owner,” “you” or “your” refers to the business entity that has qualified for and established a Card Account in accordance with the terms of the Bank Agreement.

1.3. “Authorized User” means an employee or another person designated by the Business Administrator as authorized by you to receive a Card and use the Card Account on your behalf.

1.4. “Bank” means Sutton Bank, member Federal Deposit Insurance Corporation.

1.5. “Bank Agreement” means the Elibrium Corporate Expense Card Program Terms and Conditions between the Account Owner and the Bank. [hyperlink once available]

1.6. “Business Administrator” means the person you designate to administer the Card Account and act on your behalf in accordance with the terms of the Bank Agreement.

1.7. “Card” means the Visa branded corporate payment Card issued by a Bank that allows Authorized Users to access funds loaded to the Card Account. Each reference to “Card” also shall include “Cards.” A Card may be a virtual card represented by a 16-digit account number and a physical card embossed with the same 16-digit number.

1.8. “Card Account” means the account between Account Owner and Bank established pursuant to the Bank Agreement.

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

1.10. “Communications” refers to notices, disclosures, or other communications regarding the Services.

1.11. “Disputed Transaction” refers to any transaction on the Card that you believe was not authorized or has been posted in error, or caused by an unauthorized third party gaining access to the Program.

1.12. “Elibrium Marks” means Elibrium and all other trademarks, service marks, trade names, trade dress, logos, graphics, page headers, titles, button icons, scripts, and the like that identify or refer to the Program, the Website, and/or other Services.

1.13. “Fees” means the fees payable to us for the Services, as they may vary from time to time in accordance with these Terms. The Fees are disclosed in our Pricing Schedule. The Fees are deemed accepted by you upon registration for the Program.

1.14. “Highnote” means Highnote Platform, Inc., a Delaware corporation.

1.15. “Payment Services” means payment processing services, including execution of payment transactions through the Card, transfers of funds to a Card Account, receipt of funds into a Card Account transferred by you, issuing of payment instruments and acquiring of payment transactions. Payment Services are provided by one or more of our Service Providers.

1.16. “Pricing Schedule” refers to the schedule of our Fees available athttps://www.elibrium.io/pricing.

1.17. “Privacy Policy” means our privacy policy available athttps://www.elibrium.io/privacy.

1.18. “Program” means the Elibrium Corporate Expense Card Program, which allows you to utilize electronic facilities provided by us in cooperation with our Service Providers to establish and utilize the Card(s).

1.19. “Program Content” means all text, graphics, logos, icons, images, audio clips, digital downloads and data compilations and other materials and information presented on or through the Program, the Website, the Card Account, the Card, and/or other Services.

1.20. “Service Provider” means any third party provider that we are partnering with to provide you with the Services, including, without limitation, the Bank and Highnote.

1.21. “Services” means access to the Program, the Website and related customer support services provided by us to you in connection with your use of the Program. The Services, to the extent that they relate to the Cards and the associated Payment Services, consist of communication services between you and our Service Providers that are issuing the Cards and/or providing the Payment Services inherent therein. The Services include access to certain features of the Program for the management of the Cards, and first level of customer support.

2.OVERVIEW OF THE SERVICES

2.1. Description of the Services. We provide the Program to eligible businesses for making certain commercial payment transactions as may be permitted by us from time to time. By registering with us to utilize the Program, you will be provided with access to the Services for use in connection with payment of your qualified business expenses. Issuance of the Card(s), Payment Services and certain other Services are provided by our Service Providers, and not by us.

2.2. Account. To utilize the Services, you must first register with us on the Website. As part of the registration process, you will be required to fund the Card Account in accordance with the terms of the Bank Agreement. The Services available through the Program are at all times conditioned upon the availability of a positive balance of the funds paid by you to fund the Card Account.

2.3. Eligibility. The Services are available only for commercial or business purposes to eligible business entities. By using the Services, you represent that you meet the eligibility requirements and agree to abide by these Terms. If you violate any of these Terms or any other agreement between you and us or our Service Providers, or if we believe that you do not meet the eligibility criteria, we may terminate or suspend your access to the Services (or any portion, aspect or feature of the Services), at any time in our sole discretion, with or without notice.

2.4. Program. By registering to use the Program, you represent and warrant that you are authorized to legally bind the legal entity on behalf of which you are registering with us and grant us all permissions and licenses provided in these Terms. You agree to provide true, accurate, current and complete information about you during the registration. Such information will include, among other things, your legal name, address, tax ID number, contact and beneficial ownership information. We may also ask to see other identifying documents, including any organizational business documents. You authorize us to share this information with our Service Providers and other third parties in accordance with our Privacy Policy. You agree to notify us promptly regarding any changes to the registration information or circumstances that could affect your eligibility to continue to use the Services. We reserve the right to suspend or terminate your access to and use of the Services if you provide us with inaccurate, untrue or incomplete information about your business or transactions, or if you fail to comply with any of the registration requirements.

2.5. Authorized Users. You may authorize one or more Authorized Users to access the Program, make business-related purchases and transactions, and use the Services on your behalf. To be eligible to use the Services, each Authorized User must be at least 18 years old and a resident of the United States. You agree to be solely responsible for any actions undertaken by each of your Authorized Users with respect to the Services, whether or not authorized by you. You agree to notify us promptly regarding any changes to your Authorized Users.

2.6. Access Information. You will be asked to create an online username and passcode to access and use the Services, as well as a PIN, challenge questions, and any other security information that we or our Service Providers deem necessary. You may also be requested to provide certain contact information which will enable you to receive one or more verification codes necessary to access the Services. You agree to maintain all of Access Information secure and confidential and disclose them only to your Authorized Users. You are responsible for all actions and communications undertaken or transmitted using your Access Information. We shall not be responsible in the event that your Access Information is used by an unauthorized entity or person, or misappropriated by a third party. You must notify us immediately of any unauthorized use of the Access Information. We may revoke your access to the Services if you share your Access Information with any third party, or if we believe that the Access Information has been compromised.

2.7. Incorporation of Service Providers’ Legal Terms. We are not a money transmitter and do not perform money transmission or money transfer or payment services. The issuance of the Card(s) and the Payment Services for the Program are provided by the Bank and Highnote, as well as certain other Service Providers that either we or they may be partnering with. Your use of the Services is subject to the Bank Agreement. By agreeing to these Terms or continuing to use and operate as a user on the Program, you agree to be bound by the Bank Agreement, as the same may be modified by the Bank from time to time. As a condition of the Program enabling Payment Services, you agree to provide us and/or the Program accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the Payment Services with our Service Providers.

2.8. Dealing with Service Providers. By registering with us to utilize the Program, you authorize us to act in your name and for your account with our Service Providers. By accepting these Terms, you authorize us to relay to the Service Providers in your name any instruction from you in relation to the Card Account and/or the Cards. By approving or otherwise initiating a payment through the Services, you authorize us to provide instructions to initiate and complete such payment on your behalf; provided, however, that we shall not be responsible for administration and execution of payments to be made to the Card Account.

3.CARDS

3.1. Card Issuance and Management. Card issuance and management shall be governed by the Bank Agreement. Once you have registered with us to utilize the Program and deposited funds into the Card Account, you will be able to request that one or more Cards be issued to you. The Cards are issued by the Bank subject to the registration with us, acceptance of these Terms and the Bank Agreement, and ongoing compliance with their terms and conditions. The Cards are issued at the Bank’s discretion. We are not responsible for any rejection or delay by the Bank relating to the issuance of the Cards to you. The management of the Card Account and the Cards is your responsibility. You must ensure that there is sufficient balance in the Card Account to cover the amounts of the payments made with the Card, as well as any transaction costs charged by the payee, and our Fees.

3.2. Fees. You agree to pay the applicable Fees disclosed in our Pricing Schedule, as it may change from time to time. All Fees are deducted from the transferred or collected funds in the Card Account once transaction appears in the Elibrium platform. We reserve the right to change the Fees and update the Pricing Schedule upon reasonable advance notice. All Fees are denominated in U.S. dollars.
3.3. Rewards. You may be eligible to earn 1.5% cash back on net qualified purchases (less credits, returns and adjustments) on the Card(s). Cash back rebates have no maximum limit. Balance transfers, cash advances and cash-equivalent transactions, such as purchases of money orders or gift cards, and certain other purchases/transactions do not earn rebates. Cash back rebates will be calculated on net qualified domestic transactions settled during the previous calendar month. You will not be eligible for the cash back rebates if your Card or Card Account is cancelled or closed, whether by you or us, or has a negative balance, or if there remains an unpaid outstanding balance on the Card. We will deposit the cash back rebate you are eligible for into your Elibrium Account balance on or about the 20thday of the following month. We reserve the right to determine in our sole discretion whether a particular transaction is a qualified purchase for purposes of cash back calculation. We may change or discontinue the cash back reward feature of the Program at any time for any reason.
3.4. Spending and Other Limits. The aggregate amount available for charges on the Cards at any given time will be determined by the available funds in your Card Account, and any holds and/or outstanding unpaid balances on your Cards. We and/or our Services Provider(s) may establish limits on the types of merchants with which you may use the Cards. We and/or our Services Providers may restrict the maximum amount of any particular charge and the number of charges allowed for your Cards. We are not responsible for losses resulting from declined or reversed charges. We are not responsible if a merchant refuses to honor a Card. We further reserve the right to prevent Cards from functioning outside of the United States.
3.5. Liability for Payments. You shall at all times be responsible for any amounts charged to the Cards by your or any of your Authorized Users, including, without limitation, all and all chargebacks, refunds, losses, returns and provisional credit extensions or transactions initiated through the Program. If your Card or Card Account is canceled or closed, whether by you or us, you remain obligated to pay the outstanding balance plus any interest charges, fees and other charges imposed on your Card or Card Account.
4.OPERATION OF THE SERVICES

4.1. Prohibited Activities. The Services may only be used for your bona fide business expenses. You may not use the Services for the following transactions or activities:

● Consumer payments, transactions or activities of personal, family or household nature;
● Payments to or from persons, organizations, or countries that are blocked or sanctioned by the United States, including those identified by the United States Office of Foreign Asset Control (OFAC);
● Activities that violate any federal, state, or local law, statute, or regulation;
● Payments related to (i) tobacco products; (ii) prescription drugs and devices; (iii) narcotics, steroids, controlled substances or other products that present a risk to consumer safety; (iv) drug paraphernalia; (v) weapons or other devices designed to cause physical injury; or (vi) goods or services that encourage, promote, facilitate or instruct others to engage in illegal activity; are sexually oriented; promote hate, violence, or the financial exploitation of a crime; defame, abuse, harass or threaten others; include any language or images that are bigoted, hateful, vulgar, obscene, or indecent; advertise, sell to, or solicit others; or infringe or violate any copyright, trademark, right of publicity or privacy, or any other proprietary right under the laws of any jurisdiction;
● Transactions related to gambling, including betting, lottery tickets, sports related gambling, casino gaming chips, off-track betting, and wagers at races;
● Transactions that (i) support pyramid or Ponzi schemes, other “get rich quick” schemes or multi-level marketing programs; (ii) are associated with purchases of real property, annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card; (iii) constitute money-laundering or terrorist financing; (iv) are associated with the sale of traveler’s checks or money orders, currency dealers or exchanges, or check cashing; or (v) provide credit repair or debt settlement services; and
● Tax payments and court ordered payments.

4.2. Acceptable Use. You agree to comply with all applicable federal, state and local laws and regulations that relate to the Services. In addition, you agree not to use the Services to commit any of the following activities:

● Disrupt or interfere with the security of, or otherwise abuse, the Program, the Website, or any Services, system resources, accounts, servers, or networks connected to or accessible through the Website or affiliated or linked websites;
● Impose an unreasonable or disproportionately large load on our infrastructure;
● Upload, post or otherwise transmit through or on the Program any viruses or other harmful, disruptive or destructive code, files or programs;
● Use any robot, spider, other automatic device, or manual process to monitor or copy the Services or the portion of the Website through which the Services are offered without our prior written permission;
● Bypass technology protecting the Website or the Services, or interfere or attempt to interfere, with the Website or the Services;
● Cause us or our Service Providers to lose any of the services from our service providers, or other vendors;
● Access another person’s or entity’s account or personal information, or create or use a false identity on the Program; or
● Attempt to obtain unauthorized access to the Program, our or our Service Provider’s servers or networks, portions of the Website or affiliated or linked websites which are restricted from general access. To ensure the integrity of the Services, we reserve the right at any time in our sole discretion to block users with certain unique device identifiers from accessing the Services.

4.3. Payment Services Restrictions. We do not make any representation or warranty to you in relation to the Payment Services. We do not guarantee that the Payment Services, and particularly the Cards, can be used anywhere or be accepted by any merchant, or that the Card Network will authorize any particular transaction. We shall not be liable for any loss or damage suffered in the event that a merchant refuses to accept the Card (in whole or part), if a transaction is not authorized, or if the Bank and/or Card Network cancels or suspends a Card. We shall not be liable to you for any loss or damage you may suffer as a result of your use or inability to use the Card.
4.4. Unauthorized Transactions. If you reasonably believe that a Disputed Transaction took place, you should immediately notify us and provide sufficient information to enable us to investigate the Disputed Transaction. You will be liable for any loss arising from a Disputed Transaction as a result of your or any Authorized User’s failure to keep the Access Information in the strictest confidence or comply with these Terms and/or the Bank Agreement. We do not assume liability for any Disputed Transactions. Your rights in the case of a Disputed Transaction shall be against the Bank and shall be subject to applicable laws and any agreement between you and the Bank.
4.5. No Right to Continued Service. We reserve the right to change or update the Services, including the interface, functionality and/or operation of the Services, at any time, from time to time and without prior notice. At any time and from time to time without notice, we may add, delete, disable or modify some or all of the Services, at our sole election. You acknowledge that you may no longer be able to use the Program, the Website, and/or other Services to the same extent (or at all) as prior to such change or discontinuation, and that we shall have no liability to you in such case. In no event shall we be liable for the removal of or disabling of access to any content, materials or functionality. We may also impose limits on the use of or access to certain features or portions of the Program, and other aspects or components of the Services without prior notice.

4.6. Geographic Limitations. The Services are intended to be used solely in the United States. We make no representation that the Services are appropriate or available for use in other locations, and access to them from territories where any of the Services are illegal is prohibited. Those who choose to use and/or access the Services from other locations do so of their own volition and are responsible for compliance with applicable local laws.

4.7. Consent to Communications. BY REGISTERING FOR THE PROGRAM AND ACCEPTING THESE TERMS, YOU ARE PROVIDING YOUR EXPRESS WRITTEN CONSENT TO RECEIVE COMMUNICATIONS FROM US AT THE EMAIL ADDRESS AND TELEPHONE NUMBER(S) YOU PROVIDE. THESE COMMUNICATIONS MAY INCLUDE TELEMARKETING MESSAGES SENT VIA EMAIL, LANDLINE PHONE, FAX, CELLULAR PHONE, OR TEXT MESSAGES (INCLUDING SMS AND MMS). WE MAY USE AN AUTOMATIC TELEPHONE DIALING SYSTEM, WHICH MAY EMPLOY AN ARTIFICIAL OR PRE-RECORDED VOICE OR “ROBOTEXTS,” TO GENERATE OR INITIATE COMMUNICATIONS TO YOU. YOUR CARRIER’S STANDARD RATES AND CHARGES MAY APPLY. AGREEING TO THESE COMMUNICATIONS IS NOT A CONDITION OF PURCHASING ANY PROPERTY, GOODS, OR SERVICES FROM US.

4.8. Data and Other Charges. You agree that you are solely responsible for all data and other charges you incur in connection with your use of the Services, including without limitation charges incurred in uploading images or documents or in connection with using any “chat” via text or other communication feature made available as part of the Services, whether such charges are incurred by accessing the Services from a mobile device using a cellular data connection or otherwise.

4.9. Privacy Policy. Your use of the Services is subject to our Privacy Policy. Please review it carefully. By agreeing to these Terms, you consent to the collection and use of your personal information, and to all other actions taken by us with respect to your personal information, as described in our Privacy Policy.

5.OWNERSHIP AND INTELLECTUAL PROPERTY

5.1. Ownership of the Services. The Services are owned by us and/or our Service Providers and are offered to you by us for limited use pursuant to these Terms. You agree and acknowledge that you shall not acquire any ownership rights in the Services by accessing or using the Services or otherwise. Nothing in these Terms shall be deemed to give you the right to modify, copy, distribute, transmit, display, reproduce, license, create derivative works from, transfer or sell the Services or any Program Content or the Elibrium Marks.

5.2. Trademarks. The Elibrium Marks are the sole and exclusive property of us or our licensors. This property is protected by the US and international trademark and related laws. The Elibrium Marks may not be copied, imitated or used, in whole or in part, without our prior written permission. The Elibrium Marks may not be used in connection with any product or service that is not related to the Services, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us, our Service Providers or the Services. Any unauthorized use of the Elibrium Marks or any third party trademark is strictly prohibited.

5.3. Program Content. The Program Content is our sole and exclusive property. The Program Content is protected by the U.S. and international intellectual property and other laws. So long as you are eligible to use the Services, you are granted a limited license to access and use the Services and to download or print a copy of any portion of the Program Content solely for your use, provided that you keep all copyright or other proprietary notices intact. Any other use of the Program Content is strictly prohibited and will result in the termination of the license granted under these Terms. The Program Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without our prior written permission. Such unauthorized use may violate applicable laws, such as copyright and trademark laws and applicable communications regulations and statutes, and may result in civil and criminal penalties. The limited license granted pursuant to this Section is revocable by us at any time without notice and with or without cause. Any rights not expressly granted to you herein are reserved.

6.INDEMNITY, WARRANTY AND LIMITATION OF LIABILITY

6.1. Indemnity. You agree to indemnify and hold us, our affiliates, subsidiaries, officers, directors, agents, employees, and licensors harmless from any claim or demand, including reasonable attorneys’ fees and costs, made by any third party due to or arising out of your usage of the Program or the Services, your breach or alleged breach of any of your obligations set forth in these Terms, our Privacy Policy or the Bank Agreement, your unauthorized use of any of our intellectual property, or your alleged violation of any other rights of a third party or any applicable laws or regulations. You shall cooperate as fully as reasonably required in the defense of any claim. We reserve the right, but are not obligated, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.

6.2. Nature of Services. Your access to and use of the Services is at your own risk. THE SERVICES ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND ARE SUBJECT TO THE ADDITIONAL DISCLAIMERS AND OTHER TERMS SET FORTH HEREIN.

6.3.Exclusion of Warranties. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE MAKE NO REPRESENTATION OR WARRANTY OR ENDORSEMENT OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE PROGRAM AND/OR THE WEBSITE; (B) THE SERVICES; (C) THE PROGRAM CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO, OR FROM, US VIA THE SERVICES. IN ADDITION, WE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM ANY SECURITY RISK OR VULNERABILITY. NOTHING HEREIN SHALL BE CONSTRUED AS A WARRANTY OF COMPATIBILITY WITH ANY PARTICULAR MOBILE/COMPUTING DEVICE, OPERATING SYSTEM, OR OTHER SOFTWARE RESIDENT ON YOUR DEVICE. WITHOUT LIMITING THE FOREGOING, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT WE SHALL HAVE NO LIABILITY WITH RESPECT TO: (A) FAILURE OF USER CONTENT TO UPLOAD TO THE SYSTEM OR ANY OTHER SYSTEM MALFUNCTION; (B) ANY USER CONTENT; OR (C) THE ACTIONS OR OMISSIONS OF ANY AUTHORIZED USER.

WE DO NOT AND CANNOT GUARANTEE THAT THE PROGRAM OR THE WEBSITE IS FREE FROM SECURITY RISKS OR VULNERABILITIES OR THAT INFORMATION PROVIDED BY YOU VIA THE SERVICES WILL NOT BE STOLEN OR OTHERWISE SURREPTITIOUSLY OBTAINED. WE ARE NOT RESPONSIBLE OR LIABLE FOR ANY INFECTIONS OR CONTAMINATION OF YOUR SYSTEM OR DELAYS, INACCURACIES, ERRORS, OR OMISSIONS ARISING OUT OF YOUR USE OF THE SERVICES. YOU HEREBY ACKNOWLEDGE AND UNDERSTAND THAT SUCH RISK IS INHERENT IN INTERACTING WITH SYSTEMS OVER THE INTERNET, AND YOU TAKE FULL RESPONSIBILITY FOR ANY HARM, DANGER OR DAMAGE THAT ENSUES DUE TO ANY SUCH BREACH IN SECURITY. PURSUANT TO THESE TERMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIMS ANY SUCH LIABILITY.

WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) WITH RESPECT TO THE SERVICES IS TRUE, VALID, ACCURATE, COMPLETE, OR USEFUL. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.

6.4. Limitation of Liability. TO THE EXTENT ALLOWABLE BY APPLICABLE LAW, IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE WEBSITE, THE PROGRAM OR OTHER SERVICES OR WITH THE DELAY OR INABILITY TO USE THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. IF WE ARE FOUND TO BE LIABLE, OUR TOTAL LIABILITY TO YOU WILL BE LIMITED IN AGGREGATE TO $100, TO THE EXTENT PERMITTED BYLAW. YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO THESE TERMS MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM IS PERMANENTLY BARRED.

7.TERMINATION

7.1. Termination. Unless stated otherwise, these Terms shall continue until terminated by either party. Either you or we may terminate these Terms at any time upon fifteen (15) days’ written notice to the other party. We may terminate these Terms at any time and without notice if you or any of your Authorized Users fail to comply with these Terms and/or the Bank Agreement, or if the Bank ceases to issue Cards for any reason. Any termination of these Terms shall be without prejudice to any obligations or rights which may have accrued prior to the termination and shall not affect any provision of these Terms which is expressly or by implication intended to come into effect on, or to continue in effect after, such termination.

7.2. Consequences of Termination. Upon termination of these Terms, the Card Account, the Cards, the Services, including the Payment Services, and your access to the Program, will be cancelled and suspended in their entirety. You shall cease to use the Services in any manner. We shall not have any obligation to act on any of your requests after the termination of these Terms. The funds available on the Cards and in your Card Account (if any) will be returned to you after a suitable time reasonably determined by us or our Service Providers to ensure that all outstanding transactions, return items, credits, penalties, assessments, Fees and all other obligations have been paid.

8.CONSENT TO ELECTRONIC TRANSACTIONS AND COMMUNICATIONS

8.1. Consent. We may send you certain Communications regarding the Services. Because the Services are available only online, it is necessary for you to consent to transact business with us electronically online. When you register with us to utilize the Program and agree to these Terms, you agree to (i) receive all Communications from us and our Service Providers electronically, and (ii) use electronic signatures and transact business with us electronically. If you choose not to consent or if you withdraw your consent, you may be unable to use the Services. Your consent shall remain in effect for as long as you use the Services or until all Communications relating to the transactions that occurred while you used the Services have been made.

8.2. Communications that May be Provided in Electronic Form. You consent to receive Communications from us electronically includes, among others, the following documents: (i) any disclosure statement or agreement governing your use of the Services; (ii) any disclosure required by federal, state or local law; (iii) billing statements, receipts and account history; (iv) letters, notices or alerts regarding the Services and any changes to the Services; (v) federal and state tax statements and documents; and (vi) other disclosures, notices or communications in connection with your application or use of the Services, the Card Account, account maintenance, or servicing and collection of funds.

8.3. Methods of Providing Communications. We may provide Communications to you by (i) email, (ii) making them accessible on the Website, and (iii) making them accessible through hyperlinks provided online and/or in emails. Communications will be provided online, and you may view them by using email software, browser software, or PDF viewer software. We may also use electronic signatures and obtain them from you.

8.4. Hardware and Software Requirements. In order to access, view, and retain electronic Communications that we provide to you, you must have: (i) an up-to-date device or devices (e.g., computer, tablet, mobile phone, etc.) with internet access; (ii) a current, compatible web browser; (iii) a valid email account and access to that email account; and (iv) an operating system capable of receiving, accessing and displaying records and Communications from us in electronic form via text-formatted email or access to our website using a supported browser, including any necessary software (e.g., Adobe to read pdf documents). If you wish to store or print any Communications, you must also have a device capable of storing and printing Communications. If you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add our email accounts to your email address book.

8.5. How to Withdraw Your Consent. You may withdraw your consent to receive electronic Communications by contacting us via email at info@elibrium.io. To withdraw your consent, you may contact us only by mail or email. The withdrawal of your consent will cancel your ability to receive electronic Communications, and may terminate your ability to use the Services. The withdrawal of your consent will be effective after we have had a reasonable period of time to process it.

8.6. Updating Contact Information.It is your responsibility to keep your contact information, including your primary email address, current.You can update your primary email address or other contact information by logging to the Website.

8.7. Federal Law.You acknowledge and agree that the Services are subject to the federal Electronic Signatures in Global and National Commerce Act (“E-SIGN Act”), and that you intend that the E-SIGN Act apply to validate your ability to engage in transactions related to the Services electronically.

9.MISCELLANEOUS TERMS

9.1. Full Integration. These Terms, including the Privacy Policy and the Pricing Schedule, along with the Bank Agreement, constitute the entire agreement between you and us related to your access to and use of the Program, the Website and other Services. These Terms, as they may be amended from time to time, supersede all prior written, oral, or electronic agreements between you and us relating to your access to and use of the Services.

9.2. Written Agreement. These Terms constitute a written agreement between you and us. A printed version of these Terms, and of any notice given in electronic form related to these Terms, shall be admissible in judicial or administrative proceedings to the same extent, and subject to the same restrictions, as other business contracts, documents, or records originally generated and maintained in printed form. You hereby waive any and all defenses you may have based on the electronic form of these Terms.

9.3. Modifications. We have the right to modify these Terms and any policies affecting the Services, including without limitation the Privacy Policy and the Pricing Schedule. Your continued use of the Services following notice of any modification to these Terms shall be conclusively deemed an acceptance of all such modification(s). If you are dissatisfied with any modifications made pursuant to this provision, or any of our policies or practices in providing the Services, including without limitation any change to the Program Content, you have the right to cease using the Services.

9.4. Notices. Unless otherwise specified in these Terms, any notices required or allowed under these Terms will be provided to us by email to info@elibrium.io We may provide you with any notices required or allowed under these Terms by sending you an email to any email address you provide to us, provided that in the case of any notice applicable both to you and other users, we may instead provide such notice by posting it on the Website. Notices provided to us will be deemed given when actually received by us. Notice provided to you will be deemed given 24 hours after posting to the Website or sending via email, unless the sending party is notified that the email address is invalid.

9.5. Governing Law; Exclusive Jurisdiction and Venue; Waiver of Jury Trial. You agree with us that these Terms shall be considered a contract governed by the laws of the State of California. Any disputes regarding these Terms or the transactions contemplated hereby shall be heard by the state or federal courts located in Laramie County in the State of Wyoming, and each party consents to the exclusive jurisdiction of such courts. You and we acknowledge and agree that any controversy that may arise under these Terms is likely to involve complicated and difficult issues and, therefore, you and we each irrevocably and unconditionally waive any right either may have to a trial by jury in respect of any legal action arising out of or relating to these Terms. You and we each certify and acknowledge that we have considered the implications of this waiver, we make this waiver voluntarily, and we have each been induced to enter into these Terms by, among other things, the mutual waivers and certifications in this section.

9.6. No Waiver. Failure to insist on strict performance of any of the Terms will not operate as a waiver of any subsequent default or failure of performance.

9.7. Severability. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.

9.8. Relationship between the Parties. Nothing contained in these Terms shall be construed to constitute a partnership or joint venture between you and us or to constitute employment or any type of agency between the parties.

9.9. Events beyond Our Control. We will use reasonable efforts to keep the Program, the Website, and other Services available for your use; however, we cannot and will not be responsible for any loss or unavailability of access to the Services that results from any cause including a cause over which we do not have direct control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, wireless data or other interconnect problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes or other labor problems, wars, or governmental restrictions.

9.10. Descriptive Headings. The headings of the various sections herein are for convenience of reference only and shall not define, limit or otherwise affect any of the terms or provisions hereof.