This 40Seas Platform User Agreement (“Agreement”) governs access to and use of the Platform (as defined below) which is owned and operated by 40Seas, Inc., a Delaware corporation located at 1007 N. Orange Street, 10 th Floor, Wilmington, DE 19801  (“40Seas”) and is entered into by and between 40Seas and the undersigned User (as defined below) on the Effective Date (as defined below).  

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WHEREAS, 40Seas is a provider of factoring services to sellers of goods and services (“Sellers”) to their customers (“Buyers”) and provides the Platform to facilitate the acceptance and approval and submission of the 40Seas Factoring and Security Agreement (“Factoring Agreement”), amendments thereto and other related agreements;

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WHEREAS, the Platform also facilitates 40Seas’ purchase of accounts receivable from Sellers arising from sales to Buyers under the Factoring Agreement, and enables Sellers and Buyers to accept and agree to the terms and conditions of certain documents and to submit and/or upload certain documents required under the Factoring Agreement and additionally for Sellers and Buyers to receive documents from 40Seas;

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WHEREAS, the Platform facilitates Buyer’s confirmation of purchases orders and invoices, and entering into agreements with Seller, as applicable, to support requirements under the Factoring Agreement;

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WHEREAS, User desires to use the Platform to execute and submit documents and, as applicable, to upload and submit other documents as set forth above in connection with the Factoring Agreement or the Buyer Payment Options and to receive documents from 40Seas; and

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WHEREAS, this Agreement can only be accepted and approved by a User pursuant to User’s compliance with 40Seas’ procedures for providing Platform access by Authorized Persons (as defined below), including but not limited to compliance with 40Seas’s E-Security System.

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NOW THEREFORE, in consideration of the mutual covenants and promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, 40Seas and User agree as follows:

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1. Definitions

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a. “Authorized Users” means duly authorized officer of User that have been verified and approved by 40Seas. 

b. “E-Identity System” means the digital solution and security system used by 40Seas for proof of identity of Authorized Users to access the Platform and to accept and approve agreements and other documents on the Platform.

c. “Effective Date” means the date that User accepts and approves this Agreement on the Platform.

d. “Platform” means 40Seas’s internet-based platform and its underlying software and technology, including updates or upgrades of the same, which facilitate the acceptance and agreement to terms and conditions, submission and/or uploading of documents related to the Factoring Agreement by Users. 

e. “User” means a Seller or Buyer who has accepted and agreed to this Agreement on the Platform.

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2. General Terms and Conditions Governing Use of the Platform

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a. Platform Availability and Grant of License.  Subject to the terms and conditions of this Agreement, 40Seas agrees (i) to use commercially reasonable efforts to make the Platform available to User and (ii) hereby grants to User a limited, terminable, non-exclusive, non-assignable, non-sublicensable, non-transferable license to access and use the Platform free of charge (“License”).   Pursuant to such License, Authorized Persons can access and use the Platform to accept and agree to terms and conditions, submit and/or upload documents related to the Factoring Agreement and receive documents or notices from 40Seas.

b. Authorized Users. Users will require that all Authorized Users keep user ID and password information strictly confidential and not share such information with any unauthorized person.  User will be responsible for restricting access to any officer of User who is no longer authorized to access and use the Platform.  40Seas shall have no liability for actions undertaken using User Ids and passwords, including the unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords resulting from User’s breach of this provision.  User is responsible for Authorized Users’ use of the Platform and will take reasonable steps to ensure that their use of the Platform complies with the terms and conditions of this Agreement.

c. Terms and Conditions or documents Accepted and Agreed to on Platform.  User agrees that all terms and conditions and other agreements accepted and agreed to by Authorized Persons on the Platform and/or using a third-party electronic signature software as specified on the Platform shall be legally binding and enforceable against User.

d. Conditions of Platform Use.   User shall (i) use the Platform for lawful purposes only and in compliance with all applicable laws and regulations, (ii) be responsible for the accuracy and quality  of all data and information submitted and/or confirmed on the Platform, (iii) use commercially reasonable measures to prevent the unauthorized access and use of the Platform, (iv) notify 40Seas immediately of any unauthorized access or use of the Platform and/or has reason to believe that the E-Security System has been compromised, and (v) use the Platform only as intended.

e. Electronically Submitted Data. User assumes the risk that any data electronically submitted on the Platform is corrupted or compromised during transmission, and acknowledges and agrees that any documents and data submitted on the Platform may be relied upon by 40Seas.

f. E-Identity System. User agrees to comply with all updates and changes to the E-Identity System procedures from time to time.  40Seas will advise User of such updates and changes on the Platform.  User acknowledges and understands that failure to comply with any such updates or changes will result in User being denied access to the Platform.

g. Access to Platform. 40Seas reserves the right to deny access to the Platform at any time upon if User or its Authorized Persons violate any of the terms and conditions of this Agreement, or for any other reason as determined in 40Seas’ sole and absolute discretion.

h. Privacy Policy.  Personal data related to the Authorized Persons will only be used in accordance with the 40Seas Privacy Policy found on the Platform.

i. Term and Termination.  This Agreement shall become effective on the Effective Date, and unless terminated in accordance with the terms herein, the Agreement shall continue until terminated by either party upon thirty (30) days prior written notice.  Notwithstanding the foregoing, the terms and conditions of this Agreement will continue to apply to the following sections of this Agreement: 1., 2.d., 2.i., 2.j., 2.k., 2.l., 2.m., 2.n., and 2.o. 

j. Confidentiality.  User agrees to (i) treat as confidential all agreements entered into via the Platform and all documents provided and/or made available to User via the Platform (“Confidential Information”) and (ii) to not disclose such Confidential Information to any third party without the written prior consent of 40Seas.  Notwithstanding the foregoing, User may disclose Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar method, provided that User promptly notifies 40Seas in writing of such demand for disclosure so that 40Seas, at its sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information. 

k. Intellectual Property.  The Platform and related software are proprietary to 40Seas and all right, title and interest thereto remains with 40Seas.  User’s rights to the Platform are limited to those expressly set forth in this Agreement. 

l. Platform Warranty.  40Seas warrants that the Platform will perform to facilitate acceptance and approval of terms and conditions or documents, and  the submission and/or uploading of documents related to the Factoring Agreement and/or to Buyer Payment Options and permit User to receive documents from 40Seas.  In the event of a breach of this warranty, 40Seas will use commercially reasonable efforts to correct the reported non-conformity at no charge to User, or if 40Seas is unable to do so within ten (10) days of receiving User’s report, either party may terminate this Agreement subject to the Term and Termination provision of this Agreement.   The foregoing shall be User’s sole and exclusive remedy for any breach of the warranty set forth in this section.  This warranty will not apply unless (i) User notifies 40Seas within seven (7) days of the date on which User first noticed the non-conformity, or (ii) if the non-conformity was caused by User’s misuse of the Platform, or the unauthorized user of an Authorized Person’s ID and password, or third-party hardware, software or services or for issues out of 40Seas’s control. 

m. Warranty Disclaimer.  USER ACKNOWLEDGES AND AGREES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT 40SEAS PROVIDES THE PLATFORM AND ALL RELATED SERVICES ON AN “AS-IS” BASIS WITH NO WARRANTY EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND THAT, EXCEPT AS SET FORTH HEREIN, 40SEAS SHALL HAVE NO LIABLITY TO USER IN CONNECTION WITH USER’S USE OF THE PLATFORM OR RELATED SERVICES.  40SEAS DOES NOT WARRANT THE USE OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE.  40SEAS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, PLATFORM FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES OUTSIDE OF 40SEAS’S CONTROL.  NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY CONSEQUENTIAL, RELIANCE, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE EVEN IF INFORMED OF SUCH DAMAGES IN ADVANCE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. 

n. Indemnity.  

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1. User hereby agrees to defend, indemnify and hold 40Seas and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assign harmless from any and all actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs contingent or otherwise, arising out of or relating to from the use or access to the Platform using the user IDs and passwords of Authorized Persons, including the unauthorized use or access caused by misuse or misappropriation of such user IDs and passwords.  

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2. User hereby agrees to defend, indemnify and hold 40Seas and each of their respective officers, directors, shareholders, employees, representatives, agents, successors and assigns from any and all actions, claims, demands, losses, liabilities, damages, recoveries, settlements and/or costs contingent or otherwise, arising out of or relating to:

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• any failure of User to comply with or breach of this Agreement or any failure of any other user of the Platform to comply with or breach an agreement substantially similar to this Agreement;
• negligence or willful misconduct by User or any other user of the Platform; and
• any claim by User or any other user of this Platform regarding any transaction conducted in whole or in part on this Platform.

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3. The foregoing indemnity obligations shall be subject to the following: (i) that the 40Seas give User prompt written notice of any such claim; (ii) that the 40Seas permits the User to control and direct the defense or settlement of any such claim; and (iii) that the 40Seas provides the indemnitor all reasonable assistance in connection with the defense or settlement of any such claim, at the User’s sole expense.

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o. Miscellaneous

1. Amendments to Agreement. The terms and conditions of this Agreement may be amended from time to time by 40Seas.  In such event User will be presented with the amended Agreement on the Platform and be required to accept and approve or execute such amended Agreement.   Failure to accept or approve or execute an amendment to the Agreement will result in denial to access and use the Platform.
   
   
2. Governing Law and Jurisdiction.  This Agreement shall be governed by the laws of the State of New York, without giving effect to the conflict of laws principles thereof.   The jurisdiction and venue for actions related to the subject matter hereof will be the state and federal courts located in New York County, New York and both parties hereby irrevocably submit to the personal jurisdiction of such courts. 
   
   
3. Authority. Each person signing this Agreement represents and warrants that he/she is duly authorized to execute this Agreement on behalf of the party for which he/she is signing.
   
   
4. Notices.  Any notices, demands, consents, or other writings or communications permitted or required by this Agreement shall be given by email as follows:

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40Seas, Inc.:   notice@40seas.com

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5. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of the Agreement.
   
   
6. Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision hereof or invalidate or render unenforceable such term or provision in any other jurisdiction.
   
   
7. Headings.  The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

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