LEGAL004 - XTRM API Agreement

THIS XAPI AGREEMENT IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND XTRM INC. 

PLEASE READ IT CAREFULLY. 

Last modified: November 25, 2020

This XAPI Agreement ("Agreement") is a contract between you (the "Integrator") and XTRM Inc., Inc., and its affiliates(“XTRM Inc.”) and applies to your use of XAPI and/or XTRM Widgets (collectively known as the "XTRM Payments API"). In this Agreement, "you" and "your" refer to Integrator and your designated agents, including your administrative contact, and "we,” "us" and "our" refer to XTRM Inc.. If you are using the XTRM Payments APIs on behalf of an entity, you represent and warrant that you have authority to bind that entity to these terms, and by accepting the terms, you are doing so on behalf of that entity (and all references to "you" in the Agreement refer to that entity). You must read, agree with, and accept all of the terms and conditions contained in this Agreement. By accessing or using the XTRM Payments API, you acknowledge that you have agreed to this Agreement. We may amend this Agreement at any time by posting a revised version on our website. The revised version will be effective at the time we post it. You agree to review periodically our website to be aware of any revisions. By continuing to use the XTRM Payments API after any revision to this Agreement or any change in XTRM Payments API, you agree to abide by and be bound by any such revisions or changes. If you use the XTRM Payments APIs as an interface to, or in conjunction with other XTRM products or services, then the terms for those other products or services also apply.

1. INTRODUCTION.

The XTRM Payments API includes all versions released after Jan 1 2018. You agree that you shall (i) use the XTRM Payments API in accordance with the applicable user guides and other documentation; and (ii) not use or permit others to use information obtained with the XTRM Payments API for any purpose other than in conjunction with the XTRM Payments API and in a manner described in this Agreement and in the documentation for the XTRM Payments API. 

2. DEFINITIONS. 

"ACH" means Automated Clearing House. 

"API" means application programming interface 

"Financial Institution" means banks or financial institutions that have agreed to provide banking services to Integrators. 

"Financial Processor" means an entity with which XTRM Inc. has established a relationship that 

performs the back-end authorization and processing of Transactions. 

"Company Admin Account" means the online account management tools for Integrators for the XTRM Payments API. 

“XTRM Payments API” means the payment gateways under the brand names XAPI that include, without limitation, real-time, secure data transmission and processing for multiple business-to-person and business-to-business payment transfers including, credit cards, debit cards, purchase cards, gift cards, cryptocurrency and XTRM Inc. AnyPay wallet payments. 

"Transaction" means information related to the transfer of money between digital wallets, wallet funding or transfer out by a third party. Specifically a Transaction is a transfer or if credit card related, authorization, delayed capture, sale, void, voice 

authorization, inquiry, verification, reference transaction, non-reference credit, or credit data transmission between XTRM Inc. and its back end processors. 

3. Integrator OBLIGATIONS. 

3.1 General Service Requirements. You shall: 

a. Maintain commercially reasonable business practices in conjunction with the use of the XTRM Payments API including (i) maintaining your website (the "Integrator Web Site") and connection to the Internet and fulfilling all payment products and services managed by you; (ii) reviewing Transactions on a regular basis and notifying XTRM Inc. promptly of any suspected unauthorized activity and (iii) keeping your login name and password confidential and agreeing that the administrative contact you provide to us during Registration is your agent with full authority to act on your behalf with respect to such XTRM Payments API. 

b. Collect, store and transmit certain Transaction and user information (collectively, the "Data"), in a secure manner, protect the privacy of the Data, and comply with requests from XTRM Inc. to take reasonable action to maintain the security and integrity of the XTRM Payments API; and 

c. Update to the most current XAPI Software version and security updates and patches necessary to properly operate the XTRM Payments API and keep all your beneficiary, profile and payment information current and updated on the XTRM Inc. Company Admin Account. 

4. XTRM Inc.'s OBLIGATIONS. 

4.1 XTRM Payments API. Subject to the terms in this Agreement, XTRM Inc. agrees to provide (i) the XTRM Payments API for which you have enrolled and paid the 

applicable fees, and (ii) access to the XTRM platform for all standardized reports regarding your Transactions processed using the XTRM Payments API. 

4.2 Information Conduit. You acknowledge that XTRM Inc. is not a financial or credit reporting institution. XTRM Inc. is responsible only for providing Data transmission to effect or direct certain payment authorizations for you and is not responsible for the results of any credit inquiry, the operation of web sites of internet service providers (“ISP”), your Financial Institutions, the availability or performance of the Internet, or for any damages or costs you suffer or incur as a result of any instructions given, actions taken or omissions made by you, your Financial Institution, or any ISP. The XTRM Payments API present data and information collected from you and data sources other than XTRM Inc. and XTRM Inc. makes no representations or warranties regarding the availability, accuracy, timeliness or completeness of such data and information or any output or results of the XTRM Payments API based in whole or in part on such data and information. You are solely responsible for the accuracy and completeness of all Data you supply. When a user's non-public content is obtained through the APIs, you may not expose that content to other users or to third parties without explicit opt-in consent from that user.

4.3 Security and Stability. You acknowledge that it is in the best interests of both parties that XTRM Inc. maintains a secure and stable environment; to that end, XTRM Inc. may change the method of access to the XTRM Payments API at any time. You also agree that, in the event of degradation or instability of the XTRM Payments API or an emergency, XTRM Inc. may temporarily suspend your access to the XTRM Payments API, any API, and/or any XTRM Inc. content under this Agreement in order to minimize threats to and protect the operational stability and security of the XTRM platform. XTRM Inc. does not guarantee the security of the XTRM Payments API or Transaction data, and XTRM Inc. will not be responsible 

in the event of any infiltration of its security systems, if XTRM Inc. has used commercially reasonable efforts to prevent any such infiltration.  XTRM may set and enforce limits on your use of the XTRM Payment APIs (e.g. limiting the number of API requests that you may make or the number of users you may serve), in our sole discretion. You agree to, and will not attempt to circumvent, such limitations. If you would like to use any XTRM Payment API beyond these limits, you must obtain XTRM’S express consent (and XTRM may decline such request or condition acceptance on your agreement to additional terms and/or charges for that use)..

4.4 Technical Support for XTRM Payments API. XTRM Inc. shall provide technical support services as set out at the following URL: support.xtrm.com 

5. REQUIRED USE OF XTRM Inc. SERVICES. 

5.1 Registration. When you register for the XTRM Payments API on the XAPI sandbox server the email address you designate will be used to create your XTRM Inc. sandbox account, however, to migrate to the XTRM Inc. live payments server, the account information you use will be checked for KYC and AML compliance 

6. FEES AND PAYMENT TERMS. 

6.1 Fees. If any fees apply, you agree to pay XTRM Inc. the applicable fees for the XTRM Payments API as set out in your custom fees and rebates schedule. 

6.2 Taxes. The fees are exclusive of tax. You are responsible for all taxes, duties, levies or tariffs or charges of any kind imposed by any federal, state or local governmental entity on the fees for the XTRM Payments API, excluding taxes based on XTRM Inc.’s net income. 

6.3 Payment Method. You agree to pay for the XTRM Payments API payments via credit card, automated wallet transfer or ACH or using additional payment methods as they become available. You authorize XTRM Inc. to charge your credit card, debit your company wallet or debit your bank account via ACH for the fees, as applicable. You shall provide proper authorization to allow XTRM Inc. to debit its bank account to collect fees due under this Agreement. All fees owed by you to third parties (for example, Financial Institutions, Financial Processors, and Integrator suppliers or customers), are your sole responsibility, and are not covered by this Agreement. You are solely responsible for the credit card or ACH account information you provide to XTRM Inc. and must promptly inform XTRM Inc. of any changes thereto. 

7. TERM AND TERMINATION. 

7.1 Term; Renewal. This Agreement will commence on the date you accept the terms of this Agreement (the "Effective Date"). You must notify us if you do not wish to auto-renew this Agreement on an annual basis. Renewal is subject to our then-current terms and conditions, including, successful completion of any applicable authentication procedure, and payment of all outstanding fees. 

7.2 Termination. Either Party may terminate the Agreement for convenience at any time upon notice to the other party. XTRM Inc. may terminate this Agreement, effective immediately, (i) in the event of insolvency, receivership or voluntary or involuntary bankruptcy, or an assignment for the benefit of your creditors, or in the event that a substantial part of your property is or becomes subject to any levy, seizure, assignment or sale for or by any creditor or governmental agency without being released or satisfied within thirty days thereafter; (ii) if you fail to comply with applicable laws or regulations; (iii) for any of the reasons listed in Section 7.3 below. 

7.3 Suspension. XTRM Inc. may suspend your access to the XTRM Payments API immediately, without prior notice if: (i) certain third party licenses or access to third party components of the XTRM Payments API are terminated; (ii) you cause or fail to fix a security breach relating to the XTRM Payments API; (iii) XTRM Inc. reasonably believes your breach compromises the security of the XTRM Payments API; (iv) XTRM Inc. reasonably believes fraudulent Transactions are being submitted on your account knowingly or negligently; (v) your Financial Institution requires such suspension; (vi) you fail to pay any fees when due; (vii) you fail to upgrade to the most current software version, security updates and/or patches within a designated time period; or (g) you fail to materially comply with this Agreement. 

7.4 Effect of Termination. XTRM Inc. will cease providing the XTRM Payments API and cease charging you for any fees.Upon termination, your rights to use the XTRM Payments API, and any other rights granted hereunder, shall immediately cease, and you shall destroy any copy of the XTRM Inc. Documentation or other materials licensed to you hereunder and referenced herein. Termination of this Agreement will not relieve either Party from any liability arising prior to the termination of this Agreement. To the extent permitted by applicable law, you agree that upon termination, we may delete all information relating to your use of the Service. 

7.5 Reinstatement of XTRM Payments API. If XTRM Payments API are suspended or terminated by XTRM Inc. reinstatement of XTRM Payments API shall be subject to you paying XTRM Inc. all past due fees, if any apply. 

8. PRIVACY. 

Both Parties privacy policies shall be adequately displayed within their respective websites and meet current legal and industry standards within each Party’s reasonable determination. Our privacy policy is located on our Web site at https://xtrm.freshdesk.com/en/support/solutions/articles/128204-privacy-policy and is incorporated herein by reference. You agree that in the course of utilizing the XTRM Payments API, XTRM Inc. will capture certain Data. You agree to provide to XTRM Inc. only the Data that is required by our system that is necessary for XTRM Inc. to provide the XTRM Payments API services. Subject to applicable law, XTRM Inc. may use the Data as necessary to (i) perform the XTRM Payments API contemplated in this Agreement (including distributing the Data to third parties providing services you requested); (ii) collect and process the Data for record keeping, reporting, and analytics; (iii) provide fraud detection, risk modeling, and support services (iv) compile and disclose Data in the aggregate where your individual or user Data is not identifiable, including calculating your averages by region or industry; and (v) provide the Data as required by the card associations, law or court order, for purposes of incident investigation, or to defend XTRM Inc.’s rights in a legal dispute. You represent and warrant that you have provided notice to, and obtained consent from, any third party individuals whose personal data you supply to us. We are not responsible for any consequences resulting from your failure to provide notice or receive consent from such individuals or for your providing outdated, incomplete, or inaccurate information. You are responsible for capturing and securing any Data you need prior to submission to us for processing. We will use the Data for processing the Transactions. After processing we will provide only truncated Data to you through our standard reporting tools. 

9. CONFIDENTIALITY. 

9.1 Confidential Information Defined. A party’s "Confidential Information" is defined as any information of the disclosing party, which (i) if disclosed in a tangible form is marked using a legend such as "Confidential" or "Proprietary" or if not so marked, should be reasonably understood by the receiving party from the context of disclosure or from the information itself, to be confidential, or (ii) if disclosed orally or visually is declared to be confidential or, if not so declared, should be reasonably understood by the receiving party from the context of disclosure or from the information itself to be confidential. Confidential Information shall include, the terms of this Agreement; the integration requirements; information accessed via the XAPI service; information relating to the XTRM Inc.’s systems, technology, processes, and 

financial information; your user ID; information relating to your business, security and technology; and all user data and customer information (including user IDs and passwords) regardless of whether marked "Confidential." 

9.2 Mutual Obligations. Each party shall hold the other party’s Confidential Information in confidence and shall not disclose such Confidential Information to third parties nor use the other party’s Confidential Information for any purpose other than as required to perform its obligations under this Agreement. Such restrictions shall not apply to Confidential Information that (i) is already known by the recipient, (ii) becomes publicly known through no act or fault of the recipient, (iii) is received by recipient from a third party without restriction on disclosure or use, or (iv) is independently developed by the recipient without reference to the Confidential Information or (v) where Confidential Information is required to be disclosed by a court, government agency, law enforcement agency, regulatory requirement, or similar disclosure requirement. The parties’ respective obligations to maintain the confidentiality of information disclosed hereunder shall survive the expiration or early termination of this Agreement or until such time as such information becomes public information through no fault of the receiving party. Upon termination or expiration of this Agreement, the receiving party shall immediately return to the disclosing party all manifestations of the Confidential Information or shall destroy all such Confidential Information as the disclosing party may designate; provided that such action may be delayed for so long as, and to the extent that, such Confidential Information relates to outstanding payment obligations or is subject to audit, reporting, or retention requirements under this Agreement or applicable law. 

10. PROPRIETARY RIGHTS. 

10.1 Intellectual Property. You acknowledge that XTRM Inc. and its licensors retain all intellectual property rights (including all patent, trademark, copyright, trade dress, trade secrets, database rights and all other intellectual property rights) and title in and to all of their Confidential Information; other proprietary information, products and services; and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the XTRM Payments API and provided by XTRM Inc. hereunder, including without limitation all modifications, enhancements, derivative works, configurations, translations, upgrades, and interfaces thereto (all of the foregoing “XTRM Inc. Intellectual Property”). XTRM Inc. Intellectual Property does not include your preexisting hardware, software, data, or networks. Except as otherwise expressly provided herein, nothing in this Agreement shall create any right of ownership or license in, and to the other Party’s intellectual property rights and each Party shall continue to independently own and maintain its intellectual property rights. There are no implied licenses under this Agreement and any rights not expressly granted to you under this Agreement are reserved by XTRM Inc. or its suppliers. You shall not reverse engineer, decompile, modify in any manner or create derivative works from the XTRM Payments API, (defined below) or any XTRM Inc. Intellectual Property. 

10.2 License. XTRM Inc. hereby grants you a non-exclusive, non-transferable, revocable, non-sublicensable, limited license to use XTRM Inc.’s Intellectual Property solely as required and necessary to use the XTRM Payments API in accordance with the terms and conditions of this Agreement and any user guides provided by XTRM Inc. to you. 

10.3 XAPI Documentation. XTRM Inc. shall make available to you its API integration and user guides and SDKs (collectively “XTRM Inc. Documentation”). You shall comply with the XTRM Inc. Documentation in connection with the integration and use of APIs. You shall keep all user ID, passwords and other access codes pertaining to the XTRM Payments API confidential and secure from all unauthorized persons. You will immediately terminate the access rights of any user who ceases to act in an authorized capacity on your behalf for any reason, including because of a change in employment status or in the event of theft, loss or authorized disclosure or misuse of that user ID. You agree to notify XTRM Inc. immediately upon learning of any unauthorized use of your user name or password. You shall be solely responsible for (i) updating your passwords for access to the XTRM Payments API periodically, and (ii) creating passwords that are reasonably “strong” under the circumstances. The user ID is the property of XTRM Inc. and may be immediately revoked or terminated by XTRM Inc. if you share the same with any third party, or otherwise breach this Agreement. In connection with your use of XTRM’s API’s, you are prohibited from doing any of the following: (i) selling, transferring, sublicensing, or disclosing your user ID to any third party (other than third party service providers); (ii) selling, transferring, sublicensing, and/or assigning any interest in XTRM Inc.’s Confidential Information accessed by the APIs; (iii) collecting any customer’s personally identifiable information that is accessed through the APIs without that customer’s express permission; (iv) providing timeshare, service bureau, application service provider or similar services to any other third party; and (v) interfacing or connecting the XTRM Payments API with any other computer software or system without the prior written approval of XTRM Inc.. XTRM Inc. shall have no responsibility or liability for the performance of the XTRM Payments API, in the event that the XTRM Payments API is not used in accordance with this Agreement or any instructions for use provided by XTRM Inc.

10.4 Feedback.  If you provide feedback or suggestions about our XTRM Payments APIs, then we (and those we allow) may use such information without obligation to you. 

10.5 Open Source Software. Some of the software required by or included in our XTRM Payment APIs may be offered under an open source license. Open source software licenses constitute separate written agreements. For certain APIs, open source software is listed in the documentation. To the limited extent the open source software license expressly supersedes the Agreement, the open source license instead sets forth your agreement with XTRM for the applicable open source software.

11. REPRESENTATIONS AND WARRANTIES. 

11.1 Authority. Each party represents and warrants that (a) it has full power and authority to enter into and perform this Agreement; and (b) its execution and performance of this Agreement does not violate, conflict with, or result in a material default under any other contract or agreement to which it is a party, or by which it is bound. 

11.2 Compliance with Laws. You represent and warrant that you shall comply with all applicable privacy, consumer and other laws and regulations with respect to (i) provision, use and disclosure of the Data; (ii) dealings with the users providing the Data; and (iii) use of the XTRM Payments API.  You may not use the XTRM Payment APIs if you are a person barred from using or receiving the APIs under the applicable laws of the United States or other countries including the country in which you are resident or from which you use the APIs.

12. DISCLAIMER. 

THE XTRM PAYMENTS API AND SOFTWARE INCLUDING THE API LICENSE ARE PROVIDED HEREUNDER ON AN "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND AND EXCEPT AS EXPRESSLY STATED HEREIN, XTRM INC.. DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARDS TO THE XTRM PAYMENTS API AND SOFTWARE. XTRM INC.. DOES NOT REPRESENT OR WARRANT THAT THE XTRM PAYMENTS API AND SOFTWARE SHALL OPERATE SECURELY OR WITHOUT INTERRUPTION. 

13. INDEMNIFICATION. 

Unless prohibited by applicable law, You will defend, indemnify and hold harmless XTRM Inc., its affiliates, and its officers, directors, employees, and agents from any loss, damage, liability, claim, demand or cost (including reasonable attorneys’ fees) (“Claim”) made or incurred by any third party due to or arising out of (i) your breach of this Agreement; (ii) the sale or use of any product or services sold by you; (iii) your or your end users’ misuse of the XTRM Payments API; or (iv) any content or Data routed into or used with the XTRM Payments API by you, those acting on your behalf, or your end users. 

14. LIMITATION OF LIABILITY. 

IN NO EVENT WILL XTRM INC.'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID TO XTRM INC. BY YOU HEREUNDER DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM FOR DAMAGES. IN NO EVENT WILL XTRM INC.. OR ITS LICENSORS HAVE ANY LIABILITY TO INTEGRATOR OR ANY OTHER PARTY FOR ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF THIS AGREEMENT, UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY (INCLUDING NEGLIGENCE), AND WHETHER OR NOT XTRM Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. The limitations set forth above shall be enforceable to the maximum extent allowed by applicable law. 

15. MISCELLANEOUS TERMS. 

15.1 Force Majeure. Neither Party shall be responsible for any failure to perform its obligations under this Agreement if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, laws or governmental regulations or other causes that are beyond the reasonable control of such Party. Obligations hereunder, however, shall not be excused but shall be suspended only until the cessation of any cause of such failure. 

15.2 Entire Agreement and Modification. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any prior oral, written, or online agreements. Except as otherwise provided for herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the Parties. This Agreement does not govern your use of the XTRM Inc. payment processing services such as the XTRM Website, or your XTRM Inc. account. Your XTRM Inc. account and/or your use of any XTRM Inc. payment processing services shall be governed by the online XTRM Inc. User Agreement and any other agreement you agree to in connection with such account and/or your use of such XTRM Inc. Services. 

15.3 Severability. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. 

15.4 Assignment; No Waiver. This Agreement binds and is for the benefit of the successors and permitted assigns of each Party. You may not assign this Agreement or any rights under it, in whole or in part, without XTRM Inc.’s prior written consent. Any attempt to assign this Agreement other than as permitted above will be null and void. Failure 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. 

15.5 Governing Law and Jury Trial Waiver. Except as stated below, this Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., except for its conflicts of laws principles. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts in Santa Clara County, California. XTRM Inc. AND Integrator IRREVOCABLY WAIVE ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO OR ARISING UNDER THIS AGREEMENT. 

15.5a If you are accepting the Agreement on behalf of a United States federal government entity, then the following applies instead of the paragraph above: the laws of the United States of America, excluding its conflict of laws rules, will apply to any disputes arising out of or related to the Agreement or the XTRM Payment APIs. Solely to the extent permitted by United States Federal law: (i) the laws of the State of California (excluding California's conflict of laws rules) will apply in the absence of applicable federal law; and (ii) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE TERMS OR THE APIS, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN SANTA CLARA COUNTY, CALIFORNIA.

15.6 Survival. Sections, which by their nature survive, shall survive any termination or expiration of this Agreement in accordance with their terms. 

15.7 Export Restrictions. You agree that you shall not import, export, or re-export directly or indirectly, any commodity, including your products incorporating or using any XTRM Inc. products in violation of the laws and regulations of any applicable jurisdiction. 

15.8 Notices. Except as otherwise expressly stated in this Agreement, all notices to XTRM Inc. shall be in writing and delivered via courier or certified or registered mail, to General Counsel, 1221 Brickell Avenue, STE 900, Miami, FL 33131 or any other address provided by XTRM Inc.. All notices to you shall be delivered to your email address as provided by you in your account information. Unless you choose to opt-out of receiving marketing notices, you authorize XTRM Inc. to notify you as our customer, via commercial emails, telephone calls and other means of communication, of information that we deem is of potential interest to you, including without limitation communications describing upgrades, new products and services or other information pertaining to the XTRM Payments API or other XTRM Inc. offerings. You may opt out of receiving marketing communications at any time by clicking an unsubscribe link found at the bottom of such email, or by providing us notice at support@xtrm.com .Notwithstanding the above, you shall not have the right to opt-out of service or support notices relating to the XTRM Payments API, including without limitation, notices of service modifications, security, performance issues or technical difficulties. 

15.9 Headings. The section headings appearing in the Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or extent of such section or in any way affect such section. 

15.10 Relationship of the Parties. The Parties are independent contractors and will have no power or authority to assume or create any obligation or responsibility on behalf of each other. This Agreement will not be construed to create or imply any partnership, agency, or joint venture. 

15.11 Non-Disparagement; Publicity. During the term of the Agreement, neither party will disparage the other party or the other party's trademarks, web sites, products or services, or display any such items in a derogatory or negative manner on any website or in any public forum or press release. All media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either Party relating to this Agreement are prohibited without the prior written consent of both Parties. 

15.12 Expenses. Except as otherwise specified herein or as otherwise mutually agreed upon by the Parties, each Party will bear its own costs of performing under this Agreement. 

15.13 Government Use. If you are a branch or agency of the United States Government, the following provision applies. The software and any related documentation were developed solely at private expense and are "commercial computer software" and "commercial computer software documentation" within the meaning of the applicable U.S. Federal Acquisition Regulation and agency supplements thereto.. 

FRAUD PROTECTION SERVICES 

1. Introduction. The Fraud Protection Services include (i) KYC (Know your customer) services (ii) AML (Anti Money Laundering Services) 

2. Setting Preferences. XTRM shall be responsible for setting preferences for the Fraud Protection Services to determine which Transactions it will accept or reject based on the authentication information provided by Integrators. We shall not reject a Transaction unless, based on various combinations of authentication information, we reasonably determine that the individual requesting the Transaction is likely not the person or company he is representing himself to be. 

3. Account Monitoring. You acknowledge that XTRM Inc. does not represent or warrant that the Fraud Protection Services is error free or that it will identify all fraudulent activity. In addition, XTRM Inc. shall not be liable to you if XTRM Inc. incorrectly identifies a Transaction as fraudulent. XTRM Inc. shall use commercially reasonable efforts to monitor and internally investigate and report on potentially fraudulent activity. 

4. Dispute Resolution. You acknowledge XTRM Inc. shall have the right to provide Data to Financial Institutions and card associations for the purposes of dispute resolution. 

5. IP Address Verification Components. Except as permitted in the applicable documentation for the Fraud Protection Services, you shall not: (i) modify, recast or create derivative works of any information obtained using the IP Address Verification components of this service; (ii) publicly display, upload or post any information obtained using the IP Address Verification components or transmit, broadcast or otherwise transfer such information to any other party; (iii) license, sell, transfer or provide access to information obtained using the IP Address Verification components of the XTRM Payments API; and (iv) use, or authorize any third party to use, the information obtained using the IP Address Verification components to provide geo-location services to third parties. 

6. High Risk Filters. XTRM Inc.'s licensors of third party products or services used by you as part of the high risk filters components of the Fraud Protection Services shall be considered third party beneficiaries of the Agreement and shall have the right to enforce your compliance with the Agreement. 

7. Third Party Components. XTRM Inc. shall have the right to modify, substitute, or remove third party components of the Fraud Protection Services on 30 days prior notice. 

WITNESS WHEREOF, each of Supplier and Integration Partner have caused this Agreement to be duly executed and delivered as of ___________________________ (the “Effective Date”).