Treasury Terms of Service

Alphapoint Corporation, a Delaware corporation (“APC”), together with its affiliates and subsidiaries, including Alphapoint Global S.A. de C.V. (“APG”), welcomes you.  Use of the words “we,” “us” or “our” refers to APC.

APC is a financial technology infrastructure provider. APC provides a treasury platform (“Alphapoint Treasury Platform”) which is designed to enable stablecoin and fiat treasury operations across blockchain networks and traditional financial systems, including secure minting, custody, movement, and reconciliation of digital dollars with built in governance, liquidity control, and real time operational visibility (the “Services”). APC IS NOT A BANK. REGULATED PAYMENT SERVICES ARE PROVIDED THROUGH FINANCIAL SERVICES PARTNERS OR BANKS. APC partners with banks or other regulated financial institutions and other service providers, including APG (collectively, “Service Providers”) in order to provide the Services, including the payments infrastructure for the Services.

‍Alphapoint Treasury Platform Services Agreement

This Alphapoint Treasury Platform Services Agreement (the "Agreement") sets forth the terms and conditions between us (including services provided by Service Providers) and the Client ("Client", "you," or "your") which govern Client’s access to and use of the Services and related rights, obligations, disclaimers and limitations of liability.  Please read them carefully before accessing or using the Services. If you do not agree to these terms then you may not use the Services.

By accepting the terms of this Agreement electronically, accessing or using the Services, purchasing Services, registering for an account with us, executing this Agreement, or accepting an order or subscription that references the terms of this Agreement, you are accepting and agreeing to these terms and the policies and guidelines referenced herein. By accessing and using the Services, you agree to comply with the terms and conditions and privacy policies of our Service Providers and their applicable agreements. 

APG, a separately operated subsidiary of APC, is a Salvadoran registered digital assets service provider licensed and regulated by the Comisión Nacional de Activos Digitales (National Digital Asset Commission) of the Government of El Salvador.  APG’s infrastructure powers custody, liquidity routing, settlement operations and chain abstraction.  By using the Services, you also agree to APG’s terms of service as applicable, as provided in the Master Trading and Lending Agreement which is available at https://trade.apglobal.io/TermsAndConditions.pdf. APG’s Privacy Policy is available at https://trade.apglobal.io/PrivacyPolicy.pdf.  

APC and the Client may individually be referred to as a "Party" and collectively the "Parties."   The definitions for some of the defined terms used in this Agreement are set forth below.  The definitions for other defined terms are set forth elsewhere in the “Definitions” provision of this Agreement.

Section 1.  Alphapoint Treasury Platform and Services; Subscription to the Services.

The Alphapoint Treasury Platform is designed to enable you to access and use the following features of the Services: (a) create Wallets, (b) self-custody digital assets supported by the Services ("Supported Digital Assets"), (c) interact and send messages to Service Providers or custodians of digital assets,  (d) monitor, maintain, and transact with the associated Supported Digital Assets, and (e) create and impose policies governing the limitations and requirements on Transactions. The Services are provided on the Alphapoint Treasury Platform through which you can provide transaction instructions to Wallets and Service Providers, including payments processors which receive, hold and transfer funds or stablecoins (or other digital assets) on your behalf.  You give us express permission to transfer your instructions and exchange other data with Service Providers in connection with the Services.  Between us and you, you are solely responsible for use of the Services, including all transactions.

Subject to the terms and conditions of this Agreement, APC hereby grants Client during the Term a limited, non-exclusive, non-transferable (except as expressly permitted herein) right and license to: (a) authorize Customer to submit Transactions to the Services via the Front End or API; and (b) access and use the Services via a dashboard, to manage, process, and service such Transactions and to onboard Client Content.  Client may grant sublicenses under the foregoing license only to: (a) its Affiliates; (b) Contractors for the sole purpose of accessing the Services in order to provide contracted services to Client or its Affiliates; and (c) as otherwise as may be specifically granted by APC.  Client shall be responsible to APC for compliance with the restrictions on use and other terms and conditions of this Agreement by any such Affiliates and Contractors.

Section 2.  Provision of the Services. 

Subject to the terms and conditions of this Agreement, APC will: (a) provide Client access to the Front End and APIs; (b) host, maintain, service, and support the Services (and, if agreed by the Parties, the Front End) and if applicable; (c) provide certain Enterprise Clients access to templates for Client to build a customized Front End.  If the Front End is customized in any way by or on behalf of Client, APC’s integration services described above may be subject to a separate fee.   APC may provide Client via the Services access to the Documentation, as may be updated from time to time in order to reflect any Updates.  Client may print copies of, use, and permit its Affiliates and Contractors to use the Documentation solely in connection with the use of the Services.  From time to time, APC may develop new products, services, and premium features that have an additional cost.  These capabilities will be presented to Client as options available for inclusion in an addendum to this Agreement. 

Wallet Services.  As part of the Services, APC may provide software and other technical support to enable Client to access and manage Wallets (“Wallet Services”).  Wallet Services shall be provided either under the “Software” model described in subsection (a) below or the “Third Party” model described in subsection (b) below, as specified initially in the applicable subscription and as the Parties may otherwise subsequently agree in writing from time to time. 

1. If the Parties are operating under the “Software” model for Wallet Services, then all Wallets will be managed and controlled by Client through Client’s access to, and use of, APC’s Wallet management software (“Wallet Software”).   Client will not: (i) delete, copy, modify, or distribute the Wallet Software or remove the Wallet Software from the APC server on which it is made available; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code of the Wallet Software; (iii) use the Wallet Software in connection with any technology or service other than the Services provided hereunder; or (iv) allow any third party to access or use the Wallet Software. Client is responsible for all acts and omissions of any individual accessing or using the Wallet Software using credentials provided to Client.  As between the Parties, custody of the Wallets and any digital asset accessible or otherwise controlled by the Wallets is held by Client.  APC will not access the Wallets other than as set forth in APC’s then-current Wallet Support Policies or as may be required by Applicable Law or legal process.  CLIENT HEREBY AGREES THAT IT HAS NOT AND WILL NOT TAKE ANY ACTION OR ACCEPT ANY CUSTOMERS, WHERE SUCH ACTION OR ACCEPTANCE WOULD CAUSE APC’S PROVISION OF THE SERVICES, INCLUDING WALLET SERVICES, TO VIOLATE APPLICABLE LAW.  
2. If the Parties are operating under the “Third Party” model for Wallet Services, then all Wallets will be provided by a Service Provider, which has integrated its service with the Services (the “Wallet Provider”), and not by APC, and shall be subject to the Wallet Provider’s terms and conditions as made available to the Client through the user interface of the Services.  By using the Wallet Services, the Client agrees to be bound by such terms and conditions.  Digital assets accessible or otherwise controlled by the Wallets will be under the control of the Client or the Wallet Provider.  APC will have no control and will not provide custody or any other services with respect to the Wallets or digital assets accessible or otherwise controlled by the Wallets.  Access to Wallet Services may require the payment of additional fees to APC and/or the applicable Wallet Provider, and such fees shall be communicated to the Client.

Third-Party Services.  Client, in its sole discretion, may use or order from APC certain services (e.g., data and/or functionalities) sourced from third-party providers (the “Third-Party Services”) and Client shall perform any necessary due diligence on such Third-Party Services.  Such Third-Party Services may require the payment of additional fees to APC, and such fees shall be communicated to Client through the Services.  For such Third-Party Services, Client’s access, continued access, and use thereof are subject to additional terms required by such third-party providers.  Such third-party terms shall be made available to Client from time to time within the Services or directly by a third-party provider.  APC does not represent or warrant that the third-party terms made available to APC are accurate or complete.  By executing this Agreement, Client acknowledges and agrees that: (a) such third-party terms are legally binding on Client, and Client shall comply with such third-party terms; (b) no third-party term shall expand Client’s rights or APC’s obligations under this Agreement; and (c) the various third-party terms that have been provided, are being provided contemporaneously herewith, or will be provided hereafter from time to time, are provided on a per third-party provider basis, and Client shall not be entitled to draw any inference by construing together the various third-party terms.

The regulated activities encompassing the Services include money transmission activities provided by regulated service providers, with such activities including the receipt of fiat funds, conversion into cryptocurrencies (including stablecoins) and delivery of such assets (“on-ramp” activities); and the receipt of such cryptocurrencies (including stablecoins), conversion to fiat and remittance of fiat proceeds (“off-ramp” activities).  For users in the United States, the Services are accessible through Brale Inc. (“Brale”), a Delaware corporation and duly registered Money Services Business (MSB) with FinCEN, authorized to conduct money transmission activities in applicable U.S. states and territories.  By accessing the Services, you hereby accept in advance the terms and conditions (“Terms of Service”) of Brale, a regulated service provider, as applicable and designated for your account, as available here:  https://brale.xyz/legal/terms, along with any applicable Brale Additional Terms.  Your acceptance of these Brale Terms of Service constitutes your advance acceptance of the terms of Brale.

Third-party providers may require that APC suspend or terminate Client’s access to the Third-Party Services provided by that third-party provider if Client fails to comply with the applicable third-party terms, and Client acknowledges that APC shall have no liability in the event of such suspension or termination.  Providers of Third-Party Services are not agents of either Party.  Such Third-Party Services are solely responsible for their own compliance with Applicable Law, including any applicable “know your customer,” anti-money laundering or other laws, and Client is responsible for ensuring that its use and/or purchase of Third-Party Services does not cause Client or APC to be in violation of any such Applicable Laws. Client agrees that APC shall have no responsibility or liability to Client in connection with the performance or non-performance of any Third-Party Services.  APC MAKES THE THIRD-PARTY SERVICES AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE THIRD-PARTY SERVICES. REPRESENTATIONS AND WARRANTIES CONCERNING THE THIRD-PARTY SERVICES, IF ANY, ARE SET FORTH IN THE THIRD-PARTY TERMS.

Section 3.  APC Ownership of Services, Documentation and Front End; Restrictions on Use.

As between APC and Client, APC retains all right, title, and interest in and to Services, the Documentation, the templates, the Front End (if Client has used APC’s templates in the creation of such Front End), and any other materials provided hereunder, including all intellectual property rights relating thereto, and Client shall have no rights with respect to the Services, the Documentation, the templates, or any other such materials other than those license rights expressly granted under this Agreement.  From time to time, Client or its employees, Contractors or representatives may provide APC with suggestions, comments, feedback or other input with regard to the Services (collectively, “Feedback”).  Client hereby grants APC a perpetual, irrevocable, royalty-free and fully-paid up license, with the right to sublicense, to use and exploit all Feedback in connection with APC’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.

As between APC and Client, Client retains all right, title, and interest in and to the Customer Data (except as expressly set forth herein) and the Client Content, including intellectual property rights relating thereto.  Client shall not (and shall not authorize, direct, or request any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Services, the Front End, or of any files contained in or generated by the Services; (b) copy, modify, adapt, or translate the Services or the Front End or otherwise make any use, resell, distribute, or sublicense the Services or the Front End; (c) make the Services available on a “service bureau” basis; (d) remove or modify any proprietary markings or restrictive legends placed on the Services, the Front End, or the Documentation; (e) use the Services in violation of any Applicable Law; or (f) introduce into the Services or the Front End any Malicious Code.  

Section 4.  Use of Services; Compliance with Applicable Law.

Client acknowledges and agrees that it will comply with Applicable Law in accessing and using the Services and in providing any products or services it makes available through its use of the Services, including Client’s compliance at all times with: (a) Applicable Law in each jurisdiction in which such products or services are made accessible or used by Client or any of its Customers; and (b) any prohibitions or restrictions on the part of Client or any of its Customers on any such access or use in any prohibited jurisdictions of any such products or services. Client agrees that it will if relevant: (a) cause each Customer to acknowledge and accept the applicable Customer Agreement; (b) comply with the terms of such Customer Agreements; (c) implement a compliance process reasonably designed to comply with Applicable Law and to prevent Persons from accessing or using Client’s products or services made available through Client’s use of the Services in violation of Applicable Law; and (d) pay for all of APC’s actual, out-of-pocket costs (including legal fees) in the event APC is required to provide information to a regulatory agency, governmental or other similar entity in connection with access or use of any such products or services by any Customer of Client or Client’s own access or use of the Services.

Section 5.  Fees; Payments; Late Payments.

Fees for use of the Services shall be due and payable as set forth in the applicable subscription.  On a monthly basis, APC shall calculate the Fees, reconcile the amounts due to each Party, and credit or debit Client’s account accordingly.  All amounts payable under this Agreement are exclusive of sales and use taxes, stamp taxes, value added taxes, and all other taxes and duties (except for any taxes on APC’s net income, which shall be paid by APC), the costs of which such taxes and duties shall be invoiced by APC and paid by Client within thirty (30) days of receipt of such invoice.  Payment under this Agreement must be made without deduction, whether on account of any withholding tax or otherwise, unless APC is already subject to the jurisdiction of the taxing authority separate and apart from APC’s dealings with Client under this Agreement, in which case the amount due to APC shall be net of any tax savings that inures to APC as a result of any required tax withholding. Client shall not be entitled by reason of any set-off, counterclaim, or other similar deduction to withhold payment of any amount due to APC.  If any withholding or deduction is required, Client shall gross up its payment to APC as is necessary to ensure that APC receives the full amount payable under this Agreement as if no such withholding or deduction had been made, subject to the above-described tax savings calculation.

Payments for the Services that are past due shall accrue interest at the lesser of one and one-half percent (1.5%) per month, or the maximum rate permitted by law.  APC shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from Client that are more than sixty (60) days delinquent.  Payments from Client that are more than thirty (30) days delinquent shall constitute a material breach of this Agreement.  During any time in which an outstanding balance due is unpaid, in addition to any of its other rights set forth herein, APC may adjust the level and scope of Services in its sole discretion, including suspending the Services or reducing subscription level / tier.

In lieu of invoicing Client for any Fees, (or taxes or other amounts due hereunder), APC may authorize Client’s credit card, bank account, or other approved facility provided during the registration process or automatically issue an ACH transaction for the full payment of same, and Subscriber hereby consents to the same.  By using the Services, Client authorizes APC, as financial technology infrastructure provider initiating the Services, to act as Client’s agent and third-party sender to initiate, process and execute payment orders, wire transfers, ACH transactions and other payment instructions submitted by Client through the Alphapoint Treasury Platform.  Client authorizes APC to debit or credit Client’s linked bank accounts and Wallet Software as necessary to complete such transactions.  Client acknowledges that APC may transmit payment instructions to its Service Providers to effectuate such transactions on Client’s behalf.  Any payment instructions are subject to verification, compliance (AML and sanctions) review and applicable transaction limits.  APC, as financial technology infrastructure provider for the Services, reserves the right to refuse, delay or reverse any transaction that APC reasonably believes may violate applicable law, this Agreement or the terms of APC’s Service Providers or third parties.  Unless otherwise mutually agreed, all payments will be charged and made in U.S. dollars.  Within thirty (30) days after termination of this Agreement, APC may charge Subscriber’s credit card, bank account, or other approved facility or automatically issue an ACH transaction for any outstanding fees,  taxes and other amounts due and payable hereunder. All objections regarding any charge or invoice must be submitted to APC within five (5) business days after Client’s receipt of such charge or invoice.  Otherwise, Client is considered to have fully accepted such charge or invoice.  All the provided Services will be considered as accepted by Client within thirty (30) days after payment for such charge or invoice is completed.

Section 6.  Confidentiality; Use of Customer Data; Data Processing.

‍Use, Disclosure and Protection of Confidential Information.  The Receiving Party shall, with respect to any Confidential Information of the Disclosing Party:  (a) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (b) subject the paragraph that follows below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees and consultants of the Receiving Party and its Affiliates who have a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; and (c) except as expressly contemplated under the preceding clause (b), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so. Each Receiving Party acknowledges that all Confidential Information has commercial value in the business in which the Disclosing Party is engaged.

The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care). The Receiving Party shall, prior to providing any Affiliate, employee, or consultant access to any Confidential Information of the Disclosing Party, inform such Affiliate, employee, or consultant of the confidential nature of such Confidential Information and require such Affiliate, employee, or consultant to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information.  The Receiving Party shall be responsible to the Disclosing Party for any violation of this section of the Agreement by any such Affiliate, employee, or consultant.  Each Party covenants and agrees that neither it nor any of its respective agents, subsidiaries, affiliates, successors, assigns, officers, key employees or directors, will in any way publicly disparage, call into disrepute, defame, slander or otherwise criticize the other Party or such other Party's subsidiaries, affiliates, successors, assigns, officers, key employees or directors.

In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this section.  In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.

Each Party acknowledges that the other Party may be irreparably harmed by any breach of this section, and agrees that such other Party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security.  The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching Party would otherwise have under or with regard to this Agreement.

Use of End User Data.  Notwithstanding anything to the contrary contained in this Agreement, APC has the right, and may, both during and after the Term: (a) use any data it receives from Client and/or Customers, including, without limitation, all Customer Data, to perform its obligations hereunder, facilitate Transactions, and operate, maintain, and improve the Services or add new APC products and services; and (b) anonymize any and all such data so that the applicable Customers are not identified, merge such anonymized data with other data, and use such data for its reporting, planning, development, and promotional purposes, to improve the Services and to add new APC products and services.

Data Processing.  The Services and their servers are operated, and the Transactions are processed, in the United States and elsewhere.  If Client and/or its Customers are located outside of the United States, Client acknowledges and agrees, and shall cause its Customers to acknowledge and agree, that any information, data, and materials provided to APC or processed through the Services, including, without limitation, the Transactions and the Customer Data, will be transferred to, processed, and used in the United States and elsewhere.  By using the Services, Client hereby irrevocably and unconditionally consents, and shall cause its Customers to irrevocably and unconditionally consent, to such transfer, processing, and use in the United States and other countries.

Section 7.  Term and Termination.

This Agreement shall begin on the Effective Date and shall continue for so long as Client maintains an active account with APC or the Agreement is otherwise terminated in accordance with the terms herein.  Either Party may terminate this Agreement (a) for convenience on thirty (30) days written notice, except that an Enterprise Client must provide written notice of its intent not to renew at least sixty (60) days prior to the end of the then-current renewal term; or (b) immediately without notice if the other Party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; or (iii) makes an assignment for the benefit of creditors. APC may terminate this Agreement with immediate effect or suspend Client’s access to the Services immediately if: (a) Client engages in any Prohibited Business Activities or violates the restrictions on the use of APC’s Confidential Information; (b) Client violates any Applicable Law; (c) APC reasonably believes that Client’s account has been used for fraudulent, illegal or unauthorized purposes; (d) Client fails to pay any amounts due hereunder; (e) APC is required to pay any amounts accessed by any Service Provider, regulatory authority or law enforcement agency; or (f) Client otherwise materially breaches this Agreement.  For any material breach not specifically provided herein, APC may terminate this Agreement if such breach remains uncured ten (10) days after APC provides Client with written notice of such breach.

In the event of any termination or expiration of this Agreement: (i) Client shall immediately pay APC for all amounts due and payable hereunder as of the effective date of termination or expiration, and, in the event of a termination resulting from a material breach by Client hereunder, such amounts shall include the full amount otherwise due through the remaining Term without offset for any prepayment; (ii) all rights and licenses granted hereunder to Client (as well as all rights granted to any Affiliates of Client or any Contractors) shall immediately cease, and Client and its Affiliates and Contractors shall immediately cease all access of the Services, the Front End, and the Documentation; and (iii) each Receiving Party shall either return to the Disclosing Party (or provide the Disclosing Party with written certification of the destruction of) all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession or control; provided, however, that each Receiving Party may keep a copy of such Confidential Information for legal and/or regulatory purposes and/or as part of any electronic archival back-up system.

Section 8.  Client’s Representations and Warranties.

Client represents and warrants that: (a)  all information provided to APC is accurate, complete, and current, and Client agrees to promptly update such information as necessary; (b) this Agreement constitutes its valid and binding obligation and is enforceable against Client in accordance with the terms of this Agreement; (c) the execution and delivery of this Agreement by it and the performance of Client’s obligations and exercise of its rights hereunder: (i) will not conflict with or violate in any material manner, any Applicable Law; or (ii) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, without limitation, any non-disclosure, confidentiality, non-competition, or other similar agreement; and (d) each time a Transaction occurs: (i) Client and its respective officers, directors, employees, and agents (collectively, the “Client Representatives”) are in compliance with the Foreign Corrupt Practices Act of 1977, as amended, and any rules and regulations thereunder, the Bribery Act of 2010, and similar laws of foreign jurisdictions; and (ii) the Client Representatives are in compliance with the U.S. money laundering laws and regulations, the U.S. Bank Secrecy Act, as amended by the USA Patriot Act of 2001 (including any recordkeeping or reporting requirements thereunder), all applicable “know your customer” laws and regulations, and the anti-money laundering laws and regulations of other jurisdictions; (c) it has obtained all necessary regulatory approvals, licenses and permits applicable to it for the use of the Services; (d) it is aware of the Applicable Laws for the user of the Services, including all those applicable in the jurisdictions in which Client conducts its business; (e) all Transactions are in compliance with all Applicable Law;  (f) none of its officers, directors, principals or key employees has been convicted of, or have agreed to enter into a pretrial diversion or similar program in connection with the prosecution of, a criminal offense involving fraud, theft, dishonesty, breach of trust, money laundering, the illegal manufacture, sale, distribution of or trafficking in controlled substances, or substantially equivalent activity in a domestic, military, or foreign court; and (g) the Client Representatives, and, to the best of Client’s knowledge (based on its completion of due diligence using best practices which it hereby acknowledges and agrees to undertake, each Customer (a) is neither a Person described or designated in the Specifically Designated Nationals and Blocked Persons List of the Office of Foreign Assets Control or in Section I of the Anti-Terrorism Order (collectively, “SDN List”) nor an entity that is owned (defined as a direct or indirect ownership interest of 50% or more) by a Person on the SDN List, and (b) does not engage in any dealings or transactions with any such Person.

Section 9.  Client Indemnification.

You agree to defend, indemnify and hold us and our officers, directors, employees, successors, licensees and assigns harmless from and against any claims, actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from: (a) your breach of this Agreement; (b) your use or misuse of the Services; and/or (c) your violation of any third-party right, including without limitation any copyright, trademark, property or privacy right.

Section 10.  APC’s Representations and Limited Warranties; Disclaimers; Limitation on Damages

APC will defend Client against any claim, suit or proceeding brought by a third-party (“Claim”) alleging that Client's use of the Services infringes or misappropriates a third party's intellectual property rights and will indemnify and hold harmless Client against any damages and costs awarded against Client or agreed in settlement by APC (including reasonable attorneys' fees) resulting from any such Claim. APC's preceding obligations will not apply if the underlying Claim arises from: (a) Client's breach of this Agreement, negligence, willful misconduct or fraud; (b) any Client Data; (c) Client's failure to use any enhancements, modifications, or updates to the Services that APC provides; (d) modifications to the Services by anyone other than APC; (e) combinations of the Services with software, data or materials not provided by APC; or (f) any use (whether authorized or unauthorized) of Client's authentication credentials.

APC IS A FINANCIAL TECHNOLOGY INFRASTRUCTURE PROVIDER ONLY.  APC IS NOT A BANK OR OTHER FINANCIAL INSTITUTION.  APC DOES NOT ACT AS A MONEY SERVICES BUSINESS OR PROVIDE MONEY TRANSMISSION.  REGULATED PAYMENT SERVICES ARE PROVIDED THROUGH BANKS OR OTHER FINANCIAL SERVICES PARTNERS.

In providing the Services, APC does not provide investment advice to Client or Client’s Customers or assume any responsibility for any Transactions.  APC does not operate, manage or control the Client’s use of the Alphapoint Treasury Platform or the Services. APC assumes no regulatory responsibility in any jurisdiction in which Client deploys and uses the Alphapoint Treasury Platform or the Services.  APC accepts no responsibility for Client’s compliance with Applicable Law, and accordingly there is no privity of contract with or cause of action by any Customer of Client.

EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE SERVICES, THE THIRD-PARTY SERVICES, THE FRONT END, THEIR COMPONENTS, ANY UPDATES, THE DOCUMENTATION, ANY DELIVERABLES, AND ANY OTHER MATERIALS PROVIDED HEREUNDER, AS WELL AS ANY PROFESSIONAL SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. ADDITIONALLY, CLIENT ACKNOWLEDGES AND AGREES THAT APC’S PROVISION OF THE SERVICES, THE THIRD-PARTY SERVICES, THE FRONT END, THEIR COMPONENTS, ANY UPDATES, THE DOCUMENTATION, THE DELIVERABLES, AND ANY OTHER MATERIALS AND SERVICES PROVIDED HEREUNDER DOES NOT CONSTITUTE FINANCIAL OR LEGAL ADVICE OF ANY KIND, AND THAT CLIENT MUST EXERCISE ITS OWN JUDGEMENT AND DUE DILIGENCE PRIOR TO ENTERING INTO ANY FINANCIAL TRANSACTION OR OTHER USE THROUGH THE SAME, EITHER ON ITS OWN BEHALF OR THROUGH PROVIDING ANY CUSTOMERS WITH ACCESS TO ANY SUCH FINANCIAL TRANSACTION OR OTHER USE. FOR THE AVOIDANCE OF DOUBT, UNDER NO CIRCUMSTANCES SHALL APC BE RESPONSIBLE FOR THE OUTCOME OR RESULTS OF ANY SUCH FINANCIAL TRANSACTIONS OR OTHER USE. CLIENT EXPRESSLY ACKNOWLEDGES AND AGREES THAT IT UNDERSTANDS THE RISKS INVOLVED WITH DIGITAL ASSETS AND DIGITAL ASSET NETWORKS, INCLUDING THE RISKS DISCLOSED HEREIN. To the extent that a Party may not as a matter of Applicable Law disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under such law.

APC’s MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE SUBSCRIPTION FEES PAID TO APC BY CLIENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

Section 11.  Risks Disclosure; Client Acknowledgement of Risks; Assumption of Loss; No Recourse

Digital assets involve significant risk, including price volatility and the potential for partial or total loss. For example, these losses may arise from or relate to lost funds, server failure or data loss, corrupted digital wallet files, unauthorized access, errors, mistakes or inaccuracies, or third-party activities.  Transactions may be irreversible, and losses resulting from unauthorized activity, fraudulent or accidental transactions, network failures, software bugs, or blockchain disruptions may not be recoverable. Digital asset networks are subject to operational limitations and events outside of APC's or APG’s control.  

Digital assets are not legal tender, are not backed by the government, and accounts and value balances are not subject to Federal Deposit Insurance Corporation or Securities Investor Protection Corporation protections.  The legal and regulatory treatment of digital assets is evolving and uncertain, and changes in Applicable Law may impact the availability, use, or value of digital assets.  Legislative and regulatory changes or actions at the state, federal, or international level may adversely affect the use, transfer, exchange, and value of digital assets. Some digital assets transactions shall be deemed to be made when recorded on a public ledger, which is not necessarily the date or time that any of APC’s or APG’s third-party service providers or partners initiate the transaction via the Alphapoint Treasury Platform.  The value of digital assets may be derived from the continued willingness of market participants to exchange fiat currency for digital assets, which may result in the potential for permanent and total loss of value of a particular digital asset should the market for that digital asset disappear.  There is no assurance that a person who accepts digital assets as payment today will continue to do so in the future.  The volatility and unpredictability of the price of digital assets relative to fiat currency may result in significant loss over a short period of time.  The nature of digital assets may lead to an increased risk of fraud or cyber attack.  The nature of digital assets means that any technological difficulties experienced by Brale, APC, or APG or by any such party's third party service providers or partners may prevent the access or use of digital assets.  Any bond or trust account maintained by Brale for the benefit of APC may not be sufficient to cover all losses incurred by APC. 

By accessing or using the Services, you acknowledge all risks associated with using the Services and that you will have no recourse against APC or APG for any losses due to your use of the Services or the Alphapoint Treasury Platform.  You agree to assume all risks and any loss associated with your use of the Services, the Alphapoint Treasury Platform and digital assets and decentralized systems generally.

Section 12.  Miscellaneous Provisions.

The following Sections will survive termination or expiration of this Agreement for any reason: Sections 3, 5, 6, and 8-11. Neither Party may assign this Agreement, by operation of law or otherwise, without the other Party's prior written consent, except that APC may assign this Agreement to a successor entity in the event of a merger, consolidation, or sale of all or substantially all of the assets of APC. Any attempt by either Party to assign this Agreement in violation of the foregoing sentence will be void. Subject to the foregoing, this Agreement is binding upon and will insure to the benefit of each of the Parties and their respective successors and permitted assigns. Client will fully comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Services or software, or any Client Content, outside the United States ("Export Rules"), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal, or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including the subscription with schedule of Fees, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications, and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture, or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other's behalf without such other Party's prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party's failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Except as provided in the paragraph below regarding mandatory arbitration, any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Borough of Manhattan, New York, New York and the Parties irrevocably consent to the personal jurisdiction and venue therein. 

Mandatory Arbitration 

YOU AND APC AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR ANY OF THE SERVICES (INCLUDING THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THESE TERMS TO ARBITRATE) SHALL BE DETERMINED BY BINDING ARBITRATION INSTEAD OF IN COURTS OF GENERAL JURISDICTION. The language to be used in the arbitral proceedings will be English. You agree that you and APC are each waiving the right to a trial by jury and to participate in a class action. This arbitration provision shall survive any termination of other terms herein.The arbitrator shall not have the power to award damages that are limited or waived by these terms (such as punitive damages, treble damages, or any other damages which are not compensatory), to the extent such limitation or waiver is permitted under applicable law, and the Parties waive any right to recover any such damages. Further, the arbitrator shall have no power to issue any award that is contrary to or inconsistent with any applicable statute, case law or constitutional law, to modify, change or excuse performance of any material term of these terms, or to award equitable relief. The arbitration proceedings and decision of the arbitrator shall be kept confidential (and may not be disclosed) by the Parties or the arbitrator, except to the extent necessary to compel any award made by the arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures, or if you reside outside the United States, pursuant to JAMS International Arbitration Rules. The arbitration hearings will take place in the Borough of Manhattan. New York, NY.  YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and APC agree otherwise, the arbitrator may not consolidate more than one person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding.  Notwithstanding any other provision herein to the contrary, either Party will at all times be entitled to seek and obtain injunctive relief from infringement or threatened infringement of its intellectual property rights or of its protective rights regarding its Confidential Information, or misappropriation of its trade secrets, in any court having jurisdiction. Each Party agrees that notice of arbitration may be serviced by written notice.  You must email your notice to legal@Alphapoint.com and contracts@Alphapoint.com

‍Section 13.  Definitions.

“Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with, a specified Person.

“Applicable Law” means (a) any domestic or foreign statute, law (including common and civil law), treaty, code, ordinance, rule, regulation, restriction; (b) any judgement, order, writ, injunction, decision, ruling, decree or award; (c) any regulatory policy, practice, guideline, guidance, interpretation or directive; or (d) any qualification, authorization, consent, exemption, waiver, right, permit or other approval of any governmental authority.

“Client Content” means all content and materials Client provides to APC and/or uploads to the Services, including, without limitation, text, images, graphics, video, audio, and sound recordings.

“Confidential Information” means: (i) patents, copyrights, trade secrets, apparatus, equipment, algorithms, software programs, software source documents and formulae related to the current, future, and proposed products and services of a Party (the “Disclosing Party”), the Disclosing Party’s suppliers, and/or the Disclosing Party’s customers; (ii) the Disclosing Party’s information concerning engineering, financial information, procurement requirements, purchasing, and manufacturing; (iii) any intellectual property of any third party licensed to or held or used by the Disclosing Party, and any confidential information of a third party held by the Disclosing Party; and (iv) with respect to APC, the terms of this Agreement, the Documentation, and the Services.  All of the foregoing may be Confidential Information whether transmitted or conveyed digitally, orally, in writing, or in the form of drawings, or as otherwise perceived or observed by the Party receiving the Confidential Information (the “Receiving Party”), in the course of the performance of its obligations under this Agreement.  Confidential Information does not include information or data which is: (a) known to a Receiving Party prior to its receipt from the Disclosing Party without a limitation or obligation of confidentiality under another agreement; (b) independently developed by the Receiving Party without use of any Confidential Information, unless such information or data is developed in accordance with the terms of this Agreement; (c) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; or (d) received from a third party with a legal or contractual right to disclose such information or data. 

“Contractor” means any third party that is under contract to provide services to Client.

“Control” or “controls” and the formatives “controlling” and “controlled” mean the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract, or otherwise. 

“Customers” means: (i) Client and Client’s customers who are users of the Front End or any APIs provided by APC to Client in connection therewith

“Customer Agreements” means for certain Enterprise Clients, the agreements between, on the one hand, Client and, on the other hand, a Customer governing such Customer’s access to and usage of the Front End, which agreements include, without limitation, a privacy and confidentiality policy and terms of service, which are (i) no less protective of APC than the terms and conditions of this Agreement; (ii) in compliance with all Applicable Law, including, without limitation, all consumer protection laws.

“Customer Data” means any and all information about Customers, Payers, and Beneficiaries (as such terms are used in the Services)  provided by Client or the Customers to APC or to which APC otherwise has access by virtue of this Agreement.

“Documentation” means all documentation (whether in hard copy, electronic, or digital form), including all technical documentation, manuals, descriptions, instructions, drawings, file layouts, flow-charts, screen layouts, specifications, and other written materials designed to provide guidance and instruction regarding the operation, maintenance, and use of the Services.

“Effective Date” means the date ascribed in the applicable subscription to the Services.

“Enterprise Client” means a subscriber to the Enterprise tier of the Services.

“Fees” means the monthly or other periodic license fees (“Subscription Fees”) and all other fees and other payment obligations due to APC for the Services.

“Front End” means the front-end user interface that enables Client to provide to Customers the ability to conduct Transactions via the Services. 

“Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.

“Person” means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency, or political subdivision thereof or other entity.

“Prohibited Business Activities” means any activity that APC believes in its sole discretion presents heightened financial, regulatory or legal risk or that are restricted by Applicable Law or by the requirements or policies of APC’s Service Providers.

“Transaction” means any transactions conducted by Customers, including trades, transfers, deposits, ledger entries, credit and debit card transactions, margin lending transactions, distributions and withdrawals, with or without mark-ups.

“Update” means each patch and new release of the Services that APC makes generally available to its other clients without additional charge.

“Wallet” means, for each individual digital asset, token, or coin, the digital credentials for a Customer’s digital asset holdings and the mechanism that permits such Customer to access and spend such individual digital asset, token or coin.