Market Maker Agreement

Date of the latest revision: September 2020

NON-EXCLUSIVE XANPOOL SOFTWARE USAGE AGREEMENT

THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.

These Terms of Service and any amendments and restatements hereof (the "Agreement") form a legal agreement covering the provision of services from XanPool to you, including offering software that allows the Software User to automate and enhance the ease of use of the Software User’s local payment methods in the specified Territory (“The XanPool Software”). The source code will not be made available to the Software user. And XanPool will contact the Software Users in regards to any integration needed for the Software User to use the XanPool software and any other services described in this Agreement (collectively the “Services” and individually, a “Service”) provided by XanPool Limited and all of its affiliates.(collectively, “XanPool” or “we” or “us” or the “company”) to you as an individual (also referred to a s a “user” or “you”). XanPool.com and its related Services are owned and operated by XanPool limited. Your use of the XanPool Software will be governed by this Agreement, along with our Privacy Policy, Cookie Policy, and E-Sign Consent.

By signing up to use an account through Xanpool.com, or any associated websites, APIs, or mobile applications, including any URLs operated by XanPool (collectively the “XanPool Website” or the “Website”), you agree that you have carefully and thoroughly read, understand, and accept all of the terms and conditions contained in this Agreement including our Privacy Policy, Cookie Policy, and E-Sign Consent.

Background:

A. XanPool has developed the XanPool Software.

B. The Software User wishes to acquire rights to use XanPool Software in the Field and in the Territory, all in accordance with the provisions of this Agreement.

The Parties agree as follows:

1. Definitions

1.1 Definitions. In this Agreement, the following words shall have the following meanings:

Affiliate means in relation to a Party, means any person that Controls, is Controlled by, or is under common Control with that Party.

Bribery Event means a breach by a Party and/or its Affiliates and/or their respective officers, directors, employees and representatives of the Prevention of Corruption Acts 1889 to 2010 and/or any corresponding anti-corruption legislation in the Territory.

Claims means all demands, claims and liability (whether criminal or civil, in contract, tort (including negligence) or otherwise) for losses, damages, legal costs and other expenses of any nature whatsoever and all costs and expenses (including legal costs) incurred in connection therewith.

Commencement Date means date of account creation of Software User.

Confidential Information means (a) The XanPool Software; and (b) All other technical or commercial information that: (i) in respect of information provided in documentary form or by way of a model or in other tangible form, at the time of provision is marked or otherwise designated to show expressly or by necessary implication that it is imparted in confidence; and (ii) in respect of information that is imparted orally, any information that the Disclosing Party or its representatives informed the Receiving Party at the time of disclosure was imparted in confidence; and (iii) any copy of any of the foregoing.

Control means a direct or indirect beneficial ownership of 50% (or, outside a Party’s home territory, such lesser percentage as is the maximum, permitted level of foreign investment) or more of the share capital, stock or other participating interest carrying the right to vote or to distribution of profits of that Party, as the case may be.

Disclosing Party has the meaning given in Clause 3.

Field means the area of automating and enhancing the easy of usage of various payment methods.

Local Payment Methods means the infrastructure that allow the Software Users to transfer funds locally. This includes but is not limited to Bank accounts, E-wallets, ect..

Net Transaction Value means the the total amount of local currency transacted with the assistance of XanPool Software.

Parties means XanPool and the Software User, and “Party” shall mean either of them.

Receiving Party has the meaning given in Clause 3.

Territory means the country region detected from the Software User’s IP at the time of account creation.

2 Grant of rights

Licence. XanPool hereby grants to the Software User, subject to the provisions of this Agreement, a non-transferable and non-exclusive licence to use the XanPool Software solely to automate and enhance the ease of use of the Software User’s local payment methods in the Field and in the Territory only. The Software User shall not use the XanPool Software for any purpose except as expressly licensed hereby and in accordance with the provisions of this Agreement.

2.1 Sub-licensing
The Software User shall not be entitled to grant sub-licences of its rights under this Agreement, except with the prior written consent of the RPO, which consent shall not be unreasonably withheld.

2.2 Reservation of rights
(a) Except for the licence expressly granted by Clause 0, XanPool reserves all its rights. Without limiting the scope of the preceding sentence, XanPool grants no rights to any intellectual property other than any intellectual property rights that subsist in the XanPool Software and reserves all rights outside the Field. (b) As the licence granted in Clause 0 is non-exclusive, the Software User acknowledges and agrees that this Agreement places no restriction on XanPool’s activities with respect to the XanPool Software. Without limiting the scope of the preceding sentence, XanPool reserves for itself and its Affiliates the irrevocable, worldwide, and royalty-free right to use the whole or any part of the XanPool Software for any and all purposes, whether commercial or non-commercial and whether in or out of the Field. For the avoidance of doubt, and without limitation, such purposes shall include the purposes of research, teaching and publication.

2.3 Supply of the XanPool Software
(a) Within five (5) days of the Commencement Date, XanPool shall provide the Software User with the instructions to begin using the XanPool Software. The Software User acknowledges that these instructions must be followed for the correct functioning of the XanPool Software. (b) Except as expressly permitted by this Agreement, the Software User shall not modify, adapt, disassemble, reverse engineer, decompile, translate, or otherwise attempt to discover the source code of any of the XanPool Software solely made available to the Software User in object code form or permit any of these things to happen, except as expressly allowed by applicable, mandatory law governing the rights of software Software Users. (c) The XanPool Software is provided ’as is’ and, without prejudice to the generality of Clause 7, XanPool shall not have any obligations to upgrade, bug-fix, provide support or maintenance services, or provide any information, assistance or consultancy in relation to the XanPool Software. (d) The Parties may enter into a further written agreement under which XanPool (through the Principal Investigator) would provide consultancy services to the Software User in relation to the further development or support and maintenance of the XanPool Software. Any such agreement: (i) would be on the terms of XanPool’s standard consultancy agreement, or such other terms as the Parties may agree in writing; and (ii) must be signed by authorised representatives of each Party.

3 Confidentiality

3.1 Confidentiality obligations
Each Party (the “Receiving Party”) undertakes from the Commencement Date: (a) to maintain as secret and confidential all Confidential Information obtained directly or indirectly from the other Party (the “Disclosing Party”) in the course of or in anticipation of this Agreement and to respect the Disclosing Party’s rights therein;(b)to use such Confidential Information only for the purposes of this Agreement; (c) to disclose such Confidential Information only to those of its employees and contractors to whom and to the extent that such disclosure is reasonably necessary for the purposes of this Agreement; and (d) to ensure that all those to whom disclosure of or access to such Confidential Information has been given, including its officers, directors, employees and professional advisors, comply with the provisions of this Agreement, and the Receiving Party shall be liable to the Disclosing Party for any breach of this Agreement by any of the foregoing.

3.2 Exceptions to obligations
The provisions of Clause 3.1 shall not apply to Confidential Information which the Receiving Party can demonstrate by reasonable, written evidence: (a) was, prior to its receipt by the Receiving Party from the Disclosing Party, in the possession of the Receiving Party and at its free disposal; or (b)is subsequently disclosed to the Receiving Party without any obligations of confidence by a third party who has not derived it directly or indirectly from the Disclosing Party; or (c)is independently developed by the Receiving Party by individuals who have not had any direct or indirect access to the Disclosing Party’s Confidential Information; or (d) is or becomes generally available to the public through no act or default of the Receiving Party or its agents, employees, or Affiliates.

3.3 Disclosure in accordance with legal obligations
To the extent that the Receiving Party is required to disclose any of the Disclosing Party’s Confidential Information by order of a court or other public body that has jurisdiction over it or under other legal obligations, such as under a bona fide freedom of information request, it may do so, provided that, before making such a disclosure the Receiving Party shall, unless the circumstances prohibit: (a) inform the Disclosing Party of the proposed disclosure as soon as possible, in any event, no later than five (5) working days after becoming aware of the proposed disclosure; and (b) permit the Disclosing Party to make representations (written or otherwise) in respect of the disclosure and/or confidential treatment of the Confidential Information.

4 Payments & Earnings

4.1 Fees on Net Transaction Value
The Software User shall pay to XanPool a fee of the Net Transaction Value.

4.2 Payment frequency
Fees due under this Agreement shall be paid within seven (7) days of the end of each week, and within seven (7) days of the termination of this Agreement. And the Software User agrees for XanPool to automate the payment extraction.

4.3 Payment terms
All sums due under this Agreement: (a) are exclusive of Value Added Tax which where applicable will be paid by the Software User to XanPool in addition;(b) shall be paid in BTC or USDT by transferring the amount in aggregate; (c) shall be made without deduction of income tax or other taxes charges or duties that may be imposed, except insofar as the Software User is required to deduct the same to comply with applicable laws. The Parties shall cooperate and take all steps reasonably and lawfully available to them, at the reasonable expense of XanPool, to avoid deducting such taxes and to obtain double taxation relief. If the Software User is required to make any such deduction it shall provide XanPool with such certificates or other documents as it can reasonably obtain to enable XanPool to obtain appropriate relief from double taxation of the payment in question; and (d) shall be made by the due date, failing which XanPool may charge interest on any outstanding amount on a daily basis at an annual rate equivalent to thirty per cent (30%).

5 Liquidity Balance:

5.1 Liquidity Balance
The Software User shall fund his own Local Payment Method with a set amount of local currency, in order to ensure smooth operations of the XanPool Software.

5.2 Excess Liquidity Balance
The Software User understands that at times to ensure smooth operations of the XanPool Software, XanPool may leave excess local currency balance on the Software Users Local Payment Method.

5.3 Right to Excess Liquidity
The Software User understands that any Excess Liquidity on his Local Payment Method belongs to XanPool, and will have to be returned to XanPool at the end of every week. The Software User will not transfer, move, or make claims against any of the Excess Liquidity Balance without prior written confirmation from XanPool.

6 Intellectual Property

6.1 Infringement of the XanPool Software
(a)Each Party shall inform the other Party promptly if it becomes aware of any infringement or potential infringement of any intellectual property rights that subsist in the XanPool Software in the Field, and the Parties shall consult with each other to decide the best way to respond to such infringement.(b) If the alleged infringement is both within and the Field, the Parties shall also co-operate with XanPool’s other Software Users (if any) in relation to any such action. (c) Notwithstanding any other provision, XanPool shall have the exclusive right to determine whether or not any litigation shall be instituted or other action taken in connection with any infringement or potential infringement of any intellectual property rights that subsist in the XanPool Software. The Software User shall not institute any litigation or other action in relation to any such infringement or potential infringement except with XanPool’s prior written agreement.

6.2 Infringement of third party rights
(a)If any warning letter or other notice of infringement is received by a Party, or legal suit or other action is brought against a Party, alleging infringement of third party rights in the manufacture, use of the XanPool Software, that Party shall promptly provide full details to the other Party, and the Parties shall discuss the best way to respond.(b)The Software User shall not make any admissions in relation to such allegations, except with the prior written agreement of XanPool. Unless otherwise agreed in writing by the Parties, XanPool shall have the exclusive right to conduct any proceedings relating to the XanPool Software, including any proceedings relating to the alleged infringement of third party rights in the use of the XanPool Software.

7 Warranties and liability

7.1 Warranties by XanPool
XanPool warrants and undertakes as follows: (a)Subject to Clause 7.2(b), it is the proprietor of any copyright that subsists in the XanPool Software; and (b) It has not done, and shall not do nor agree to do during the continuation of this Agreement, any of the following things if to do so would be inconsistent with the exercise by the Software User of the rights granted to it under this Agreement, namely: assigned, mortgaged, charged, or otherwise transferred any copyright that subsists in the XanPool Software in the Field in the Territory or (subject to Clause 9.3(b)) any of its rights or obligations under this Agreement.

7.2 Acknowledgements
The Software User acknowledges and agrees that: (a) the XanPool Software is at an early stage of development. Accordingly, specific results cannot be guaranteed and any results, materials, information or other items (together “Delivered Items”) provided under this Agreement are provided ‘as is’ and without any express or implied warranties, representations or undertakings. As examples, but without limiting the foregoing, XanPool does not give any warranty that Delivered Items are of merchantable or satisfactory quality, are fit for any particular purpose, comply with any sample or description, or are free from bugs, errors, viruses, nor other harmful elements; and (b) XanPool has not performed any searches or investigations into the existence of any third party rights that may affect the XanPool Software.

7.3 No other warranties
(a)Each of the Software User and XanPool acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law. (b) Without limiting the scope of Clause 7.3(a), XanPool does not make any representation nor give any warranty or undertaking: (i) as to the scope, efficacy or usefulness of the XanPool Software; or (ii) the use of the XanPool Software, or the exercise of any of the rights granted under this Agreement will not infringe any intellectual property or other rights of any other person; or (iii) the XanPool Software and any other information communicated by XanPool to the Software User under or in connection with this Agreement will produce software fit for the purpose for which the Software User intended or that any product will not have any latent or other defects, whether or not discoverable; or (iv) as imposing any obligation on XanPool to bring or prosecute actions or proceedings against third parties for infringement of any intellectual property rights that subsist in the XanPool Software.

7.4 Indemnity
The Software User shall indemnify XanPool against all third party Claims that may be asserted against or suffered by XanPool and which relate to: (a)the use by the Software User of the XanPool Software; (b)a breach by the Software User of any laws or regulations in the Territory, including any Bribery Event.

7.5 Conditions for the indemnity
If XanPool seeks indemnification pursuant to Clause 7.4, XanPool shall provide prompt written notice to the Software User of the initiation of any action or proceeding that may reasonably lead to a claim for indemnification. Upon receipt of such notice, the Software User shall have the right to assume the defence and settlement of such action or proceeding, provided that it shall not settle any action or proceeding without XanPool’s prior written consent. XanPool and the Software User shall co-operate with each other in the defence of such claim.

7.6 Liability of the Parties
(a) To the extent that either of the Parties has any liability in contract, tort (including negligence), or otherwise under or in connection with this Agreement, including any liability for breach of warranty, their liability shall be limited in accordance with the following provisions of this Clause 7.6. However, the limitations and exclusions of liability set out in this Clause 7.6 shall not apply to any indemnity against third party Claims given under Clause 7.4.(b) The aggregate liability of XanPool shall be limited to an amount equal to the total income that XanPool has received from the Software User. (c) In no circumstances shall either Party be liable for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by the other Party or its Affiliates that is (a) of an indirect, special or consequential nature or (b) any loss of profits, revenue, data, business opportunity or goodwill.(d)Notwithstanding any other provision, nothing in this Agreement excludes any person’s liability to the extent that it may not be so excluded under applicable law, including any such liability for death or personal injury caused by that person’s negligence, or liability for fraud.

8 Duration and Termination

8.1 Commencement and Termination by Expiry
This Agreement, and the licence granted hereunder, shall come into effect on the Commencement Date and, unless terminated earlier in accordance with this Clause 8, shall continue in force until the fifth (5th) anniversary of the Commencement Date. On such date, this Agreement and the licence granted hereunder shall terminate automatically by expiry.

8.2 Early termination
(a)The Software User may terminate this Agreement at any time on [one (1) months’] notice in writing to XanPool. (b)Either Party may terminate this Agreement at any time by notice in writing to the other Party (the “Other Party”), such termination to take effect as specified in the notice: (i)if the Other Party is in material breach of this Agreement and, in the case of a breach capable of remedy within ninety (30) days, the breach is not remedied within ninety (30) days of the Other Party receiving notice specifying the breach and requiring its remedy; or (ii)if: (A) the Other Party becomes insolvent or unable to pay its debts as and when they become due; (B) an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction); (C) a liquidator, examiner, receiver, receiver manager, or trustee is appointed in respect of the whole or any part of the Other Party’s assets or business; (D) the Other Party makes any composition with its creditors; (E) the Other Party ceases to continue its business; or (F) as a result of debt and/or maladministration the Other Party takes or suffers any similar or analogous action. (c)XanPool may terminate this Agreement by giving written notice to the Software User, such termination to take effect forthwith or as otherwise stated in the notice: (i)if the Software User fails to pay any amount due under this Agreement by the relevant due date; or(ii)if there is any change of Control of the Software User; or(iii)if a Bribery Event occurs in relation to the Software User, any of its Affiliates or their respective officers, directors, employees and representatives. (d)A Party’s right of termination under this Agreement, and the exercise of any such right, shall be without prejudice to any other right or remedy (including any right to claim damages) that such Party may have in the event of a breach of contract or other default by the other Party.

8.3 Consequences of termination.
(a)Upon termination of this Agreement for any reason otherwise than in accordance with Clause 8.1:(i) subject to paragraph (i) above, the Software User shall no longer be licensed to use or otherwise exploit in any way, either directly or indirectly, the XanPool Software, in so far and for as long as any intellectual property rights that subsist in the XanPool Software remain in force;(ii) each Party shall return to the other or, at the other Party’s request, destroy any documents or other materials that are in its possession or under its control and that contain the other Party’s Confidential Information; and(iii) subject as provided in this Clause 8.3, and except in respect of any accrued rights, neither Party shall be under any further obligation to the other.

9 General

9.1 Force majeure
Neither Party shall have any liability or be deemed to be in breach of this Agreement for any delays or failures in performance of this Agreement that result from circumstances beyond the reasonable control of that Party, including labour disputes involving that Party. The Party affected by such circumstances shall promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

9.2 Amendment
This Agreement may only be amended in writing signed by duly authorised representatives of XanPool and the Software User.

9.3 Assignment
(a)Subject to Clause 9.3(b), neither Party shall assign, mortgage, charge or otherwise transfer any rights or obligations under this Agreement, nor any of the XanPool Software, without the prior written consent of the other Party. (b)Either Party may assign all its rights and obligations under this Agreement together with its rights in the XanPool Software to any person to which it transfers all or substantially all of its assets or business in the Field, provided that the assignee undertakes to the other Party to be bound by and perform the obligations of the assignor under this Agreement. However a Party shall not have such a right to assign this Agreement if it is insolvent or any other circumstance described in Clause 8.2(b)(ii) applies to it

9.4 Waiver
No failure or delay on the part of either Party to exercise any right or remedy under this Agreement shall be construed or operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude the further exercise of such right or remedy.

9.5 Invalid clauses
If any provision or part of this Agreement is held to be invalid, amendments to this Agreement may be made by the addition or deletion of wording as appropriate to remove the invalid part or provision but otherwise retain the provision and the other provisions of this Agreement to the maximum extent permissible under applicable law.

9.6 No agency
Neither Party shall act or describe itself as the agent of the other, nor shall it make or represent that it has authority to make any commitments on the other’s behalf.

9.7 Interpretation
In this Agreement: (a)the headings are used for convenience only and shall not affect its interpretation;(b)references to persons shall include incorporated and unincorporated persons; references to the singular include the plural and vice versa; and references to the masculine include the feminine and vice versa;(c)references to Clauses and Schedules mean clauses of, and schedules to, this Agreement; (d)references in this Agreement to termination shall include termination by expiry; and (e)where the word “including” is used it shall be understood as meaning “including without limitation”.

9.8 Notices
(a)Any notice to be given under this Agreement shall be in writing and shall be sent in digital writing to the e-mail address of the relevant Party set out at the bottom of this Agreement, Party may from time to time notify to the other Party in accordance with this Clause 9.8.

9.9 Law and jurisdiction
(a)This Agreement shall be governed by and construed in accordance with the laws of Hong Kong S.A.R. and each Party agrees to submit to the exclusive jurisdiction of the courts of Hong Kong.

9.10 Further action
Each Party agrees to execute, acknowledge and deliver such further instruments, and do all further similar acts, as may be necessary or appropriate to carry out the purposes and intent of this Agreement.

9.11 Announcements
Neither Party shall make any press or other public announcement concerning any aspect of this Agreement, or make any use of the name of the other Party in connection with or in consequence of this Agreement, without the prior written consent of the other Party.

9.12 Entire agreement
This Agreement, including its Schedules, sets out the entire agreement between the Parties relating to its subject matter and supersedes all prior oral or written agreements, arrangements or understandings between them relating to such subject matter. Subject to Clause 7.6(d), the Parties acknowledge that they are not relying on any representation, agreement, term or condition which is not set out in this Agreement.

Market Maker Agreement | XanPool