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.

a.      The Parties acknowledge and agree that this Agreement governs Customer’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 following purposes, as further described below: (i) leasing or subleasing railroad freight cars (“Railcars”) to or from third parties (“Leasing Transactions”); (ii) leasing or subleasing railroad track (“Track”) to or from third parties for the purpose of storing Railcars (“Storage Transactions”) and (iii) selling or purchasing Railcars to or from third parties (“Buy-Sell Transactions”).  Leasing Transactions, Storage Transactions, and Buy-Sell Transactions may be referred to herein individually as a “Transaction” or collectively as “Transactions.”  Customer 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.     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.

c.      Customer further understands and agrees that: (i) all information it provides and all actions it takes in connection with the Exchange will be honest and forthright, (ii) Customer will act in good faith, (iii) Customer will be bound by any agreements entered into with Lessors, Lessees, Buyers, or Sellers, as applicable, using the Exchange, (iv) in using the Exchange, Customer shall be bound by the Terms of Use and Privacy Policy of the Exchange, as set forth above, and (v) Commtrex in no way guarantees that use of the Exchange will result in a Transaction.

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.

6.     Termination.  The term of this Agreement begins as of the date on which Customer 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, Customer agrees to pay to Commtrex any fees that have or would have accrued under Section 3 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 Customer’s customer name, password or other identifier and prohibit Customer from accessing and using the Exchange. For purposes of the foregoing sentence, “cause” shall include (without limitation) any failure by Customer 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 Customer 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 Customer with respect to any Subscription Fee or with respect to any Transaction entered into prior to such termination.

 

7.     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 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.

8.     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.

 

9.     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.