COMMTREX EXCHANGE AGREEMENT - RAIL SHIPPER POLICY
This Exchange Agreement (the “Agreement”) is entered into as of the date indicated on the signature page 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.
b. Customer understands and agrees that it may use the Exchange to act as a Lessor or Lessee with respect to Leasing Transactions and Storage Transactions, and as a Seller or Buyer with respect to Buy-Sell Transactions, and that Customer will have the opportunity to review, consider and ultimately reach an agreement with a Lessor, Lessee, Seller, or Buyer, as applicable, on specified dates, for a specified period of time and at a specified price. For the purposes of this Agreement: (i) “Lessor” shall mean, with respect to Leasing Transactions, an individual or entity owning or leasing Railcars and seeking to lease or sublease one or more of such Railcars to a third party on the Exchange and, with respect to Storage Transactions, an individual or entity owning or leasing Track and seeking to lease or sublease such Track, in whole or in part, to a third party on the Exchange; (ii) “Lessee” shall mean, with respect to Leasing Transactions, individuals or entities seeking to lease or sublease Railcars from a third party on the Exchange and, with respect to Storage Transactions, individuals or entities seeking to lease or sublease Track from a third party on the Exchange; (iii) “Seller” shall mean, with respect to Buy-Sell Transactions, an individual or entity owning one or more Railcars available for sale on the Exchange; and (iv) “Buyer” shall mean, with respect to Buy-Sell Transactions, an individual or entity seeking to purchase one or more Railcars listed on the Exchange.
2. Transactions on the Exchange. In the event Customer agrees to a Transaction with a Lessor, Lessee, Buyer, or Seller, as applicable, using the Exchange, Customer shall promptly thereafter provide written notice to Commtrex setting forth the material economic terms of the Transaction, including without limitation the price payable by the Buyer or Lessee, as applicable, including any other fees or charges payable by a party pursuant to the Transaction.
3. Fee. All payments under a Transaction shall be made directly between the parties thereto and shall not be made to Commtrex. On a monthly basis with respect to all Transactions effective during the prior month, Commtrex will charge Customer a fee for its services (the “Transaction Fee”) equal to: (i) for each Leasing Transaction where Customer acts as a Lessor, five percent (5%) of the total Transaction price payable by the Lessee for such month under the Transaction; (ii) for each Storage Transaction where Customer acts as a Lessor, seven percent (7%) of the total Transaction price payable by the Lessee for such month under the Transaction and (iii) for each Buy-Sell Transaction where Customer acts as Seller, two percent (2%) of the total Transaction price payable by the Buyer. On a yearly basis, Commtrex shall charge Customer a subscription fee equal to one thousand five hundred United States Dollars ($1,500.00) (the “Subscription Fee”). If, during the twelve-month period beginning with the Effective Date, Customer enters into Transactions with an aggregate amount payable by the applicable Lessees or Buyers greater than one million United States Dollars ($1,000,000.00), then Commtrex shall waive the Subscription Fee due from Customer for such initial annual period, and shall provide a credit or refund to Customer accordingly. In no other situation, and for no other reason, shall Customer be due any refund of the Subscription Fee from Commtrex.
4. Terms of Payment and Invoicing. With respect to (i) the month in which the Effective Date occurs, (ii) the yearly anniversary of such month for each subsequent year in which this Agreement remains in effect, and (iii) any month during the term of this Agreement for which a Transaction Fee(s) is due, Commtrex shall provide to Customer promptly following such month a detailed written invoice with respect to the Subscription Fee or Transaction Fee(s) due to Commtrex, as applicable in connection with such month (an “Invoice”). Payment by Customer on the Invoice is due in full by the twenty-fifth (25th) calendar day of the month following the applicable month (the “Due Date”) and must be made to the account specified in the relevant Invoice by wire transfer in immediately available, freely transferable U.S. Dollars. In the event Customer fails to make payment by the Due Date, Commtrex may charge Customer 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.
5. Representation. Customer represents and warrants that the individual agreeing to and executing this Agreement on its behalf, or entering into any Transaction on its behalf via the Exchange, is duly authorized to do so.
7. Amendments; Assignment. Commtrex 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 Customer, and Customer may terminate this Agreement during the Change Notice Period. Each time Customer accesses the Exchange, Customer agrees to be bound by this Agreement, as then in effect. Notwithstanding the Change Notice Period, Customer’s continued use of the Exchange following notice of a revised Agreement means Customer accepts and agrees to the changes. This Agreement may not be assigned by Customer 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.
9. Choice of Law. This 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.