COMMTREX EXCHANGE AGREEMENT - RAIL SERVICE PROVIDER POLICY

 

This Exchange Agreement (the “Agreement”) is entered into as of the date purchased, hereto (the “Effective Date”) by and between Commtrex, Inc. (“Commtrex”) and the customer executing this Agreement below (“Customer”) (each, a “Party” and collectively, the “Parties”).

1.     Agreements and Use of the Exchange.

a.     The Parties acknowledge and agree that this Agreement governs Provider’s access to and use of Commtrex’s electronic platform, the Commtrex Exchange (the “Exchange”), accessible at https://exchange.commtrex.com, including any content, functionality and services offered through the Exchange, for the purpose of placing “Listings” on the Exchange as described herein. Provider hereby agrees and acknowledges that it has read and agrees to the Terms of Use for Commtrex Exchange and Commtrex Website, accessible at https://exchange.commtrex.com/static/legal/termsofuse.pdf (the “Terms of Use”), and the Commtrex Privacy Policy, accessible at http://www.commtrex.com/privacy.

b.     Provider understands and agrees that it may place Basic Listings, Verified Listings, Featured Listings and Premium Advertisements on the Exchange (each as defined below) to advertise to users of the Exchange that storage for railroad freight cars (“Railcars”) is available at particular geographical locations. Subject to the terms and conditions set forth herein and in the Terms of Use, Provider may place an unlimited number of Listings on the Exchange at any given time; provided, however, that each such Listing shall pertain to the services of Railcars at a single geographical location only, and (unless otherwise permitted by Commtrex in its sole discretion) Provider may place only one Listing with respect to a given geographical location. The placement of any such Listings shall occur through, and as permitted by, the functionality of the Commtrex Website and the Exchange. For the purposes of this Agreement: (i) “Basic Listing” shall mean a Listing on the Exchange, in the standardized format specified by Commtrex for all such Basic Listings, with respect to available services for Railcars at a single geographical location, which Listing shall be displayed in the results of any user search on the Exchange below Featured Listings; (ii) “Verified Listing” shall mean a Listing on the Exchange, in a format that may be customized as permitted by Commtrex for similar Verified Listings, with respect to available service for Railcars at a single geographical location, which Listing shall be identified in a manner equivalent to other Verified Listings; (iii) “Featured Listing” shall mean a Listing on the Exchange, in a format that may be customized as permitted by Commtrex for similar Featured Listings, with respect to available services for Railcars at a single geographical location, which listing shall be identified in a manner equivalent to other Featured Listings and displayed in the results of any user search on the Exchange; (iv) “Premium Advertisement” shall mean a Advertisement on the Exchange, which is displayed as an advertisement throughout the Exchange and the Commtrex Website; and (v) Basic Listings, Verified Listings, Featured Listings and Premium Advertisements may be referred to collectively as “Listings” or individually as a “Listing”.

c.     Provider further understands and agrees that: (i) all information it provides and all actions it takes in connection with the Exchange or any Listing will be honest and forthright, (ii) Provider is solely responsible for the accuracy of any information it makes available in a Listing (including any contact information with respect thereto), (iii) Provider shall act in good faith in using the Exchange, and shall be bound by the Terms of Use and Privacy Policy of the Exchange, as set forth above, and (iv) Commtrex in no way guarantees that placing a Listing on the Exchange will result in any customer leads with respect to transactions for the lease of Railcar storage or otherwise.

2.     Fee.  Provider may place an unlimited number of Basic Listings without incurring any fee to Commtrex. For each of the following Listings that Provider places on the Exchange, Provider shall pay Commtrex the following fees for each period of twelve (12) months beginning with the date on which Provider initially places such Listing on the Exchange: (i) six hundred United States Dollars ($600.00) for each Verified Listing; (ii) nine hundred sixty United States Dollars ($960.00) for each Featured Listing; and (iii) three thousand United States Dollars ($3,000.00) for each Premium Advertisement (any such fees may be referred to herein individually as a “Listing Fee” or collectively as “Listing Fees”). Commtrex shall discount its Listing Fee for a Listing by fifty percent (50%) in the event that Provider completes the “location profile” on the Exchange for the location of the available Railcar services, to the reasonable satisfaction of Commtrex, within seven (7) business days following the date on which it initially places such Listing on the Exchange. Commtrex also may discount any Listing Fee in its sole discretion, including in cases where Provider agrees to place multiple Listings on the Exchange for Railcar services at multiple locations, or for periods exceeding twelve (12) months, or both.

3.     Terms of Payment and Invoicing.  Promptly following any month in which Provider places one or more Verified Listing or Featured Listing on the Exchange, Commtrex shall provide to Provider a detailed written invoice with respect to the Listing Fee(s) due to Commtrex, as applicable in connection with such Listings (an “Invoice”). Payment by Provider on the Invoice is due in full by the twenty-fifth (25th) calendar day of the month following the month in which it initially placed such Listings (the “Due Date”) and must be made using one of the payment methods specified in the Invoice. In the event Provider fails to make payment by the Due Date, Commtrex may charge Provider simple interest at a monthly rate of one percent (1%) on the overdue amount beginning on the day after the Due Date to the date of actual payment.

4.     Representation.  Provider represents and warrants that the individual agreeing to and executing this Agreement on its behalf, or placing any Listing on its behalf on the Exchange, is duly authorized to do so.

5.     Termination.  The term of this Agreement begins as of the date on which Provider provides its assent to this Agreement and will continue thereafter in full force and effect for a period of one (1) year (the “Initial Period”). After the expiration of the Initial Period, this Agreement will continue until terminated by either Party upon sixty (60) days’ written notice to the other Party. Notwithstanding the foregoing, Provider agrees to pay to Commtrex any fees that have or would have accrued under Section 2 or otherwise as a result of activities on the Exchange when the Agreement was in force, as if this Agreement were still in full force. Commtrex reserves the right to terminate this Agreement for cause at any time, and to disable Provider’s customer name, password or other identifier and prohibit Provider from accessing and using the Exchange. For purposes of the foregoing sentence, “cause” shall include (without limitation) any failure by Provider to perform any obligation under this Agreement or the Terms of Use, or any representation made or repeated or deemed to have been made or repeated by Provider proving to have been incorrect or misleading in any material respect when made or repeated or deemed to have been made or repeated. Termination of this Agreement for any reason does not terminate any obligations incurred by Provider with respect to any Listing Fees incurred prior to such termination or require Commtrex to refund any Listing Fees paid prior to termination.

6.     Amendments; AssignmentCommtrex may revise and update this Agreement at any time and will provide five (5) Business Days’ notice (the “Change Notice Period”) of any changes to Provider, and Provider may terminate this Agreement during the Change Notice Period. Each time Provider accesses the Exchange, Provider agrees to be bound by this Agreement, as then in effect.  Notwithstanding the Change Notice Period, Provider’s continued use of the Exchange following notice of a revised Agreement means Provider accepts and agrees to the changes. This Agreement may not be assigned by Provider without the express written consent of Commtrex; provided however, that this Agreement may be assigned, with prior notice and without relieving the assigning Party of liability, to an affiliate of the assigning Party.

7.     Publicity.  Notwithstanding anything to the contrary in the Terms of Use, Customer agrees that Commtrex may disclose publicly, through press releases, marketing materials or otherwise (the “Materials”), that Customer is a user of the Exchange, and that Commtrex may depict, reproduce and incorporate Customer’s logos, trademarks, service marks, trade names, and copyrights in such Materials, in each case solely for the purpose of promoting and marketing the Exchange.

8.     Choice of LawThis Agreement shall be governed by, construed and enforced in accordance with the laws of the State of Texas, without application of the conflict of law principles except that the federal laws of the United States of America shall be the governing laws to the extent they are required, with respect to issues involving intellectual property rights.