COMMTREX EXCHANGE AGREEMENT - STORAGE PROVIDER POLICY

 

This Exchange Agreement (the “Agreement”) is entered into as of the purchase date 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 purpose of entering transactions to store railroad freight cars (“Railcars”) for third parties (“Storage 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 Storage Provider with respect to Storage Transactions, and that Customer will have the opportunity to review, consider and ultimately reach an agreement with Owners on specified dates, for a specified period of time and at a specified price. For the purposes of this Agreement: (i) “Storage Provider” shall mean an individual or entity owning or leasing property appropriate for the storage of Railcars and seeking to use the Exchange in order to enter into one or more Storage Transactions with one or more Owners; and (ii) “Owner” shall mean an individual or entity seeking to use the Exchange to enter into one or more Storage Transactions with one or more Storage Providers.

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 Owners using the Exchange, and Commtrex shall not be a party to any such agreement, (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 Storage Transaction.

2.     Transactions on the Exchange.  In the event Customer agrees to a Storage Transaction with an Owner using the Exchange, Customer shall promptly thereafter provide written notice to Commtrex setting forth the material economic terms of the Storage Transaction, including without limitation the price payable by the Owner, including any other fees or charges payable by a party pursuant to the Storage Transaction.

3.    Listing Fee.  Storage Provider may place an unlimited number of Basic Storage Location Listings “Listings” without incurring any fee to Commtrex. For each of the following Listings that Storage Provider places on the Exchange, Storage 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 Storage Marketplace: (i) five hundred United States Dollars ($500.00) for a Verified Location Listing; (ii) seven hundred fifty United States Dollars ($750.00) for a Verified Location Listing on the Storage Marketplace and a Verified Location Listing on the Services Directory; (iii) and an additional one hundred United States Dollars ($100.00) for each additional Verified Location Listing on either the Storage Marketplace or the Services Directory (any such fees may be referred to herein individually as a “Listing Fee” or collectively as “Listing Fees”). Commtrex 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.

4.      Transaction Fee.  All payments under a Storage Transaction shall be made directly between the parties thereto and shall not be made to Commtrex. It is the Storage Provider’s responsibility to include the Commtrex Transaction Fee, agreed to within this document, into the submitted storage pricing sent to Owner(s). On a monthly basis with respect to all Storage Transactions effective during the prior month, Commtrex will charge Customer a fee for its services (the “Transaction Fee”) equal to, for each Storage Transaction where Customer acts as a Storage provider, (i) fifty United States Dollars ($ 50.00) per switch fee and (ii) twenty-five United States Cents ($ 00.25) per car per day storage fee for such month under the Storage Transaction. Customer shall notify Commtrex of the termination of any such Storage Transaction. As of the month in which the Effective Date occurs, and for each subsequent year in which the Agreement remains in effect, Customer enters into one or more Storage Transactions with an aggregate amount payable by the applicable Owner(s) greater than five hundred thousand United States Dollars ($500,000.00), then Commtrex shall waive the Listing Fee due from Customer for the next annual period. In no other situation, and for no other reason, shall Customer be due any refund of the Listing Fee from Commtrex.

5.     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 Fee(s) is due, Commtrex shall provide to Customer promptly following such month a detailed written invoice with respect to the Listing 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 by one of the methods specified in the Invoice. 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.

6.     Representation.  Customer represents and warrants that the individual agreeing to and executing this Agreement on its behalf, or entering into any Storage Transaction on its behalf via the Exchange, is duly authorized to do so.

7.     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 Storage Transaction entered into prior to such termination or require Commtrex to refund any Subscription Fee paid prior to termination.

8.     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.

9     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 for the purpose of promoting and marketing the Exchange.

10. 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.