Whereas the Portal User wishes to appoint the Custodian to provide fund collection services and the Custodian is willing to perform such services on the terms and conditions contained in this Agreement, the terms set out herein shall apply.
Custodian means DealMaker, acting in its capacity as Custodian of the Custody Assets.
Authorized Person has the meaning ascribed thereto in clause 3.1;
Custody Assets means funds in the currencies of USD (United States) and/or CAD (Canada), in each case, currently held or from time to time received by, transferred to or held by to the order or under the direction or control of the Custodian for the account of Portal User;
Instructions has the meaning ascribed thereto in clause 3.2;
Investors means Site Visitors, being any third party invited to a deal by an Enterprise User or Portal User, who upon completion of their documentation, may become an investor Portal User.
Parties means the Custodian, Investors, Enterprise Users and Portal User.
1.1 References to Clauses are references to Clauses of this Agreement. References to statutes are, unless otherwise specified, references to statutes of Federal Laws of Canada, and include any statutory modifications or re-enactments thereof, or rules promulgated thereunder for the time being in force. Clause headings are for convenience only and shall not affect the construction hereof; and References to this "Agreement" are references to this Agreement as from time to time amended, supplemented or restated.
2. Appointment of Custodian
2.1 Each of the Investor and the Portal User hereby designate the Custodian to act as the Custodian for the purposes of this Agreement. The Portal User hereby designates and directs the Enterprise User as it’s agent and instructs the Custodian to accept any and all instruction from the Enterprise User on its behalf.
2.2 The Portal User authorizes the Custodian to collect the Custody Assets on its behalf on and subject to the terms of this Agreement.
2.3 The Custodian hereby agrees to act as the Custodian on the terms and conditions set out herein. In discharging its duties under this Agreement, the Custodian shall have regard only to the provisions hereof and no other agreement, document or instrument.
2.4 The Custodian is operating DealMaker as the software platform and is acting as the Custodian with respect to the custody of Custody Assets. The Custodian assists the Portal User with the collection of payments from the Investors, holding of Custody Assets and then releasing of Custody Assets to the Portal User. Custodian is an independent contractor for all purposes. Custodian does not have control of or liability for the securities, products or services that are paid for with the Custody Assets. Custodian does not guarantee the identity of any Site Visitor or ensure that Portal User will complete a transaction.
2.5 The Custodian is authorized to appoint any nominees, agents or sub-custodians, whether in its own name or that of Portal User, to perform any of the duties of the Custodian under this Agreement and is entitled to deposit the Custody Assets in or with any depository or clearance system (including without limitation to CIBC, in Canada and in the United States and Globally via the Custodian's affiliates and correspondent banks). Any reference in this Agreement to the Custodian shall, where the context so requires, include its nominees, agents or sub-custodians (which term shall also extend to any depository or clearance system) appointed by the Custodian on its behalf.
2.6 The Custodian shall not be responsible for any act or omission or for the solvency of any nominee, agent or sub-custodian, appointed pursuant to this Clause, provided that any such person so appointed will be an international reputable and creditworthy financial institution and that said nominee, agent or sub-custodian is liable for their own errors, misconduct or otherwise caused by their actions.
2.7 Where the Custodian agrees to act as custodian for Portal User under the terms of any power of attorney from Portal User, each of the provisions of this Agreement, including (without limitation) any indemnity in favor of the Custodian, shall also apply to the Custodian's actions as attorney for Portal User, and Portal User agrees to ratify and confirm such actions of the Custodian, and to execute such documents and/or do all such other acts and things as the Custodian may require for the purposes of the foregoing.
3. Authorized Persons and Instructions
3.1 The subscribing Enterprise User shall be authorized and directed to provide instruction to the Custodian on behalf of the Portal User. The Portal User or the Enterprise User, on behalf of the Portal User, shall provide the Custodian with the single or two officers, employees, agents or other persons (each, together with the Enterprise User, an "Authorized Person") of or for Portal User as have been authorized, either alone or with others as specified, to act on its behalf in the giving of instructions and/or performance of any acts, discretions or duties under this Agreement, and the Custodian shall be entitled to rely upon the continued authority of an Authorized Person to give instructions and so act on behalf of Portal User as aforesaid until the Custodian receives written notice from Portal User to the contrary. The inclusion of any individual on the Portal User’s account shall be implicit direction to the Custodian that individual is an Authorized Person.
3.2 The Custodian may act upon instructions ("Instructions") from an Authorized Person (or otherwise given on behalf of Portal User) in such manner as may be agreed by the Custodian and received by the Custodian, in its absolute discretion, via email, telephone, SMS message, S.W.I.F.T. or other teleprocessing or electronic instruction system acceptable to the Custodian which shall have been transmitted, provided that when taking action upon Instructions the Custodian shall act in a reasonable and proper manner unless otherwise instructed, and provided further that (i) Instructions shall continue in full force and effect until cancelled or superseded (except in respect of Instructions executed by the Custodian which can no longer be cancelled), (ii) if any Instructions are illegible, unclear and/or ambiguous, the Custodian shall refuse to execute such Instructions until any ambiguity or conflict has been resolved to its satisfaction, (iii) Instructions shall be carried out subject to the rules, operating procedures and market practice of any relevant exchange, clearing house, settlement system or market where or through which they are to be executed, and the Custodian may further refuse to execute Instructions if in the Custodian's opinion they are outside the scope of its duties under this Agreement or are contrary to any applicable law, rule or other regulatory requirement (whether arising from any Governmental authority, self-regulatory organization or that of a relevant cryto exchange, clearing house, settlement system or market as aforesaid), and (iv) the Custodian may rely in the performance of its duties under this Agreement and without liability on its part, upon any Instructions believed by it in good faith to be given by an Authorised Person (or otherwise to have been given on behalf of Portal User) and upon any notice, request, consent, certificate or other instrument believed by it in good faith to be genuine and to be signed or furnished by the proper party or parties thereto, including (without limitation) Portal User or any Authorized Person.
3.3 Except as otherwise provided in this Agreement, all transactions involving the Custody Assets shall be executed or settled or otherwise carried out solely in accordance with Instructions.
3.4 Except as otherwise agreed by the Custodian, the Custodian shall not be required to take any action to comply with any Instructions or to take any other action hereunder if (i) in the event that payment is to be made on behalf of Portal User, there are at the time insufficient Custody Assets standing to the credit of the Portal User to cover the costs of such action, or (ii) in the event that Custody Assets are to be delivered to a third party, said Custody Assets are not standing to the credit of the Custody Account, freely available and in deliverable form.
4. Fees, Expenses and Interest
4.1 The Custodian does not have any interest in the Custody Assets but is serving and holding as an agent only and having only possession thereof. The Portal User agrees to pay fees to Custodian for its services. The Custodian shall be entitled to retain its fee from the Custody Assets in all circumstances. The Parties acknowledge that the fees being paid to the Custodian for its services are an amount significantly below that of a traditional escrow agent and agree that the actions and obligations of the Custodian are limited to reflect this fee model.
4.2 The Custodian shall not pay interest to Portal User on the Custody Assets unless so mutually agreed with Portal User and then only at the rates and the intervals as agreed from time to time between Portal User and the Custodian as part of this agreement.
4.3 The Portal User hereby directs the Custodian to treat any reductions in Custody Assets received due to wire transfer costs or other processing costs as an expense the Portal User is covering for the Investors. The Parties acknowledge that any overpayments by an Investor shall be transferred to the Portal User upon completion of the transaction unless otherwise agreed to by the Custodian and the Portal User, and the Custodian is not under any obligation to refund minor amounts to Investors.
4.4 The Portal User hereby acknowledges and agrees that it is responsible for all bank transfer and processing fees of any kind, and such fees shall be deducted from the Custody Assets.
4.5 The Investor acknowledges that in the event that the Portal User directs the return of the Custody Assets, the Custody Assets shall be returned less any bank transfer and processing fees incurred during the transfer to the Custodian or during the return by the Custodian, and that the Custodian or the Portal User is in no way liable for any such fees deducted.
5. Duties of the Custodian
The duties of the Custodian shall be:
5.1 in the absence of contrary Instructions and without the need for Instructions from Portal User (i) to collect and receive all payments and distributions in respect of the Custody Assets, and to take any action necessary and proper, and/or otherwise reasonably incidental in connection with the same, including (without limitation) the presentation of amounts received, (ii) to pay any expenses or other charges incurred in relation to the performance by the Custodian of its duties under these Terms and Conditions and to debit the same to the Custody Assets, and (iii) as far as reasonably practicable and to the extent actually notified to the Custodian, to notify Portal User of all notices, reports and other financial information relating to the Custody Assets received by the Custodian, and to seek Instructions from Portal User as to any action to be taken in connection therewith; (iv) to follow Instructions as to the application of and movements in the Custody Assets and to deliver the Custody Assets to the Portal User upon closing of each investor’s investment;
5.2 to maintain the online tracking table updating the Portal User of its receipt of Custody Assets on a prompt basis; and
5.3 in the event of termination of this Agreement, to deliver or transfer the Custody Assets to Portal User or to such other person(s) as an Authorized Person shall instruct, net only of its fees and any outstanding liabilities attached to the Custody Assets of which the Custodian is or becomes aware and of any fees and expenses owing to the Custodian.
WARNING TO THE USERS: The Custodian is assisting with fund collection and tracking, it is not a regulated trust company, it is not acting as an escrow agent, it is not conducing anti-money laundering verification on the identity of the Investors or their source of funds, and the Enterprise User and the Portal User should not be relying on the Custodian to provide such service. The Custodian understands that the Portal User is dealing with parties that are known to it and each of the Portal User and the Investors have conducted the necessary due diligence on one another in order to proceed forward in a business relationship. In the event of a dispute the Custodian’s liability will be limited to the amount of it’s fees and it shall return funds as instructed by the Authorized Person.
6. Duties of Portal User
6.1 The Portal User will deliver or cause to be delivered to the Custodian, from time to time among other things, evidence of ownership of the sender of the Custody Assets.
6.2 The Portal User agrees to provide the Custodian with copies of all documents and other relevant material as the Custodian may require for the performance of their duties hereunder.
6.3 The Portal User agrees to provide full corporate due diligence information (see Corporate Portal User Due Diligence Form) defined in the Anti-Money Laundering (AML) Policies and Procedures by Custodian if so requested by the Custodian.
6.4 The Portal User agrees to share KYC information with Custodian and/or Custodian's downstream banks and/or payment processing service providers if applicable when requested by Custodian within 5 days of said request under the terms of this agreement. Custodian reserves the right to freeze any Portal User Custody Assets until said KYC information is provided to Custodian and/or Custodian's downstream providers if required by downstream banks.
7. Representations and Warranties
7.1 The Custodian and Portal User represent and warrant to each other that each party is:
(a) (unless it is an individual in which case this sub-clause shall not apply) duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;
(b) has the power and authority to execute, deliver and to perform its obligations under this Agreement (and under any other documentation required in connection herewith); and
(c) all obligations under this Agreement (and under any other documentation as aforesaid) constitute legal, valid and binding obligations.
7.2 The Portal User further represents and warrants to the Custodian that upon becoming the beneficial owner of the Custody Assets (or otherwise has all necessary authorizations and consents to enable it to deal with the Custody Assets) and, if it is acting as trustee, manager or otherwise in a representative capacity in relation to the Custody Assets, that it is fully empowered to enter into and perform its obligations under this Agreement (and under any other documentation as aforesaid) and to grant the rights and remedies to the Custodian contained herein and therein.
8. Limitations on Duties and Liabilities of Custodian
8.1 The acceptance by the Custodian of its duties and obligations is subject to the following terms and conditions, which the Portal User and the Investors hereby agree shall govern with respect to the Custodian's rights, duties, liabilities and immunities:
(a) no provision of this custody arrangement shall require the Custodian to expend or risk its own Custody Assets or otherwise incur financial liability in the performance of its duties or the exercise of any of its rights or powers unless indemnified as provided for herein, other than as a result of its own gross negligence or bad faith;
(b) the Custodian shall have no duties except those which are expressly set forth herein and shall not be bound by any notice of a claim or a demand with respect thereto or any waiver, modification, amendment, termination or rescission of these terms other than in a form satisfactory to the Custodian and upon receipt of any such document, shall have the right to transfer Custody Assets to the Portal User and remove itself from any such proceedings;
(c) the Custodian shall be protected in acting upon any certificate, written notice, request, waiver, consent, receipt, statutory declaration or other paper or document furnished to it and signed by one or more of the other Parties hereto or on its or their behalf as herein provided not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and acceptability of any information therein contained which the Custodian in good faith believes to be genuine in what it purports to be (and, without limiting the generality of the foregoing, the Custodian shall be entitled to assume the due authorization and execution of all documents submitted to it, the genuineness of all signatures, the authenticity of all documents submitted to it and the conformity to authentic original documents of all documents submitted to it as certified, conformed or email or photostatic copies thereof, and shall be entitled to act in accordance with any written instructions given it hereunder and believed by it to have been signed by the proper Parties);
(d) the Custodian shall have no duty or obligation, and shall not be bound, to call for further evidence or inquire beyond the face of this Agreement or any other document nor shall the Custodian be responsible for any loss that may be occasioned by its failing to do so;
(e) the Custodian shall not be liable for or by reason of any statements of fact or recitals in this Agreement and shall not be required to verify the same;
(f) nothing herein contained shall impose any obligation on the Custodian to see to or require evidence of the registration or filing or recording (or renewal thereof) of the acceptance or agreement of the Parties in assenting to these terms, or any instrument ancillary or supplemental thereto, or to procure any further, any other or additional instrument or further assurance;
(g) in the exercise of its rights and duties hereunder, the Custodian shall not be in any way responsible for the consequence of any breach on the part of any other Party hereto of any of their respective covenants herein contained or of any acts of the agents or servants of any of them;
(h) the Custodian shall not be liable for any error of judgment, or for any act done or step taken or omitted by it in good faith, or for any mistake of fact or law, or for anything which it may do or refrain from doing in connection herewith, except for its own gross negligence or bad faith;
(i) the Custodian shall incur no liability with respect to the delivery or non-delivery of any cash or securities whether delivered by hand, wire transfer, registered mail or bonded courier;
(j) the Custodian shall retain the right not to act and shall not be held liable for refusing to act unless it has received clear and reasonable documentation which is signed by all relevant Parties and complies with these terms and conditions. Such documentation must not require the exercise of any discretion or independent judgment on the part of the Custodian;
(k) the Custodian is relying on the Portal User and the Enterprise User to conduct the necessary background checks on the Investors and the Investors to conduct the necessary due diligence on the Portal User, prior to such parties choosing to engage with one another. The Parties acknowledge that the price paid to the Custodian is commiserate with the services of a collection and not a verification or background check agent;
(l) if any controversy arises between the Parties to this Agreement, or with any other Party, concerning the subject matter of these terms and conditions, its terms or conditions, the Custodian will not be required to determine the controversy or to take any action regarding it and shall be entitled at its option to:
1. refuse to comply with any or all demands whatsoever until the dispute is settled either by agreement amongst the various parties or by a court of competent jurisdiction. The Custodian may hold all securities in escrow and may wait for settlement of any such controversy by final appropriate legal proceedings or other means as, in the Custodian's discretion, the Custodian deems may be required, despite what may be set forth elsewhere in this Agreement. In such event, the Custodian will not be liable for damages; or
2. discontinue all further acts until such controversy is resolved, and may, in its sole discretion (notwithstanding any notices or demands received by the Custodian from any of the other Parties), pay the Custody Assets or any portion thereof to a court in the Province of Ontario in accordance with the rules thereof respecting interpleader or in such other manner or on such other grounds as such court may direct and may interplead each of the Parties hereto in the proceedings pursuant thereto. Upon so paying the Escrow Amount, and following the filing of its complaint in interpleader, the Custodian shall be released from all liability under the terms of this Agreement. The Parties hereby submit themselves to the jurisdiction of such court with respect to such matters.
8.2 No implied trust or fiduciary duties or obligations of the Custodian shall be read into this Agreement.
8.3 The Custodian hereby agrees and covenants with the Portal User and the Investor that it will perform all of its obligations under this Agreement and will not deliver custody of any of the Custody Assets to anyone except pursuant to the express terms of this Agreement.
8.4 Notwithstanding any other provision of this Agreement, and whether such losses or damages are foreseeable or unforeseeable, the Custodian shall not be liable under any circumstances whatsoever for any (a) breach by any other party of securities law or other rule of any securities regulatory authority, (b) lost profits of any party to this agreement or diminution in the market value of the Custody Assets or (c) special, indirect, incidental, consequential, exemplary, aggravated or punitive losses or damages.
8.5 The Custodian does not have any interest in the Custody Assets but is serving as Custodian only and having only possession thereof.
8.6 This Agreement is for the sole and exclusive benefit of the parties hereto, and nothing in this Agreement, express or implied, is intended to confer or shall be construed as conferring upon any other person any rights, remedies or any other type or types of benefits.
8.7 The Custodian shall have no duties except those which are expressly set forth herein, and it shall not be bound by any notice of a claim or demand with respect to, or any waiver, modification, amendment, termination or rescission of this Agreement, unless received by it in writing, and signed by the parties hereto and if its duties herein are affected, unless it shall have given its prior written consent thereto.
8.8 The Custodian may employ such counsel, accountants, engineers, appraisers, other experts, agents, agencies and advisors as it may reasonably require for the purpose of discharging its duties in acting as Custodian, and the Custodian may act and shall be protected in acting or not acting in good faith on the opinion or advice or on information obtained from any such parties and shall not be responsible for any misconduct on the part of any of them. The reasonable costs of such services shall be added to and be part of the Custodian's fee hereunder.
8.9 No party shall be liable to the other, or held in breach of this Agreement, if prevented, hindered, or delayed in the performance or observance of any provision contained herein by reason of act of God, riots, terrorism, acts of war, epidemics, governmental action or judicial order, earthquakes, or any other similar causes (including, but not limited to, mechanical, electronic or communication interruptions, disruptions or failures). Performance times under this Agreement shall be extended for a period of time equivalent to the time lost because of any delay that is excusable under this subsection.
9. Resignation of the Custodian; Successor by Merger
9.1 The Custodian may at any time resign as such, subject to this section, by delivering written notice of resignation to the Authorized Person and by delivering the Custody Assets (less any portion thereof previously distributed or applied to costs in accordance with this Agreement) to the Portal User or as otherwise directed by the Authorized Person, any successor Custodian designated by the Authorized Person, or by a court of competent jurisdiction, whereupon the Custodian shall be discharged of and from any and all further obligations arising in connection with this Agreement. The resignation of the Custodian will take effect on the earlier to occur of (the “Resignation Date”):
(a) The date of transfer of the Custody Assets;
(b) the appointment of a successor Custodian as aforesaid or by a court of competent jurisdiction; or
(c) the day which is 30 days after the date of delivery of the Custodian's written notice of resignation to the other parties hereto, or such shorter notice as the parties accept as sufficient.
9.2 Following delivery of the Custody Assets, the Custodian shall have no further duties and obligations to any of the Parties. The Portal User shall have power at any time to remove the existing Custodian and to appoint a successor Custodian as directed by the Authorized Person.
9.3 If the Custody Assets are to be released hereunder to a party who has become bankrupt, has gone into liquidation or has otherwise become incapable of performing their rights and responsibilities under this Agreement, the Custodian shall forthwith deliver the Custody Assets as directed by the Enterprise User. If all of the parties hereunder have become bankrupt, have gone into liquidation or have otherwise become incapable of performing their rights and responsibilities under this Agreement, the Custodian shall forthwith deliver the Custody Assets to Computershare Transfer and Trust and provide written notice to the Portal User and the Investor of the disposition of such Custody Assets. Upon such delivery of the Custody Assets, this Agreement shall terminate and the Custodian shall have no further duties and obligations.
9.4 In the event of the Custodian resigning or being removed as aforesaid or being dissolved, becoming bankrupt, going into liquidation or otherwise becoming incapable of acting hereunder, the Portal User shall forthwith appoint a successor Custodian; failing such appointment by the Portal User, the retiring Custodian, acting alone, may apply, at the expense of the Portal User, to a justice of the Ontario Superior Court on such notice as such justice may direct, for the appointment of a successor Custodian; but any successor Custodian so appointed by the Court shall be subject to removal as aforesaid by the Portal User.
9.5 On any such appointment, the successor Custodian shall be vested with the same powers, rights, duties and responsibilities as if it had been originally named herein as Custodian hereunder. At the request of the Portal User or the successor Custodian, the retiring Custodian, upon payment of the amounts, if any, due to it pursuant to these Terms and Conditions, including any amounts owing to it in respect to outstanding fees, disbursements and interest thereon, shall duly assign, transfer and deliver to the successor Custodian all remaining Custody Assets, and all records kept, by the retiring Custodian hereunder or in connection herewith.
9.6 Any corporation into or with which the Custodian may be merged or consolidated or amalgamated, or any corporation resulting therefrom to which the Custodian shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Custodian shall be the successor to the Custodian hereunder without any further act on its part or any of the parties hereto, provided that such corporation would be eligible for appointment as a successor Custodian hereunder.
10. Anti-money Laundering
10.1 Each of the Parties (other than the Custodian) hereby represents to the Custodian that any account to be opened by, or interest to be held by, the Custodian in connection with this Agreement, for or to the credit of such party, either:
(a) is not intended to be used by or on behalf of any third party; or
(b) is intended to be used by or on behalf of a third party, in which case such party hereto agrees to complete and execute forthwith a declaration in the Custodian's prescribed form as to the particulars of such third party if so requested.
10.2 The Custodian shall retain the right not to act and shall not be liable for refusing to act if, due to a lack of information or for any other reason whatsoever, the Custodian, in its sole judgment, determines that such act might cause it to be in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline. Further, should the Custodian, in its sole judgment, determine at any time that its acting under this Agreement has resulted in its being in non-compliance with any applicable anti-money laundering, anti-terrorist or economic sanctions legislation, regulation or guideline, then it shall have the right to immediately refund amounts received to any Investor and/or resign on ten (10) days written notice to the other parties to this Agreement, provided:
(a) that the Custodian's written notice shall describe the circumstances of such non-compliance; and
(b) that if such circumstances are rectified to the Custodian's satisfaction within such ten (10) day period, then such resignation shall not be effective.
10.3 The Parties acknowledge that the Custodian is not performing any anti-money laundering screening function, it is not a registered or regulated entity and they are wholly responsible for any breach of such laws that may arise.
11.1 The parties acknowledge that the Custodian may, in the course of providing services hereunder, collect or receive financial and other personal information about such parties and/or their representatives, as individuals, or about other individuals related to the subject matter hereof, and use such information for the following purposes:
(a) to provide the services required under this agreement and other services that may be requested from time to time; and
(b) to meet the Custodian's legal and regulatory requirements.
12. Scope of Responsibility and Indemnity
12.1 Subject to the terms hereof the Custodian shall use all reasonable care in the performance of duties under this Agreement but shall not be responsible for any loss or damage suffered by Portal User, Investor, or Enterprise User as a result of such duties unless the same results from an act of fraud, willful misconduct or gross negligence on the part of the Custodian.
12.2 The Custodian shall not, save as stated above, be responsible for the title, validity or genuineness of any of the Custody Assets (or any evidence of title thereto) received or delivered by it pursuant to the custody arrangement.
12.3 The Portal User shall be responsible for all filings, tax returns and similar reports on any transactions undertaken or required in connection with the Custody Assets which must be made to any relevant authority whether governmental or otherwise and for the payment of all unpaid taxes (including without limitation any value added tax), imposts, levies or duties, or any other liability or payment arising out of or in connection with the Custody Assets, and in so far as the Custodian is under any obligation (whether of a governmental nature or otherwise) to pay the same on behalf of Portal User it may do so upon notice to Portal User firstly by debit to the Custody Assets. Custodian does not determine if Portal User is liable for any taxes or collect or pay any taxes that may arise from the use of its Services.
12.4 The Custodian is not acting as manager or investment adviser to Portal User, and responsibility for the selection, acquisition and disposal of the Custody Assets remains with Portal User at all times. The Custodian shall have no obligation to explain or warn of any risks taken or to be taken by Portal User, Enterprise User or Investor.
12.5 The Custodian shall have no responsibility for and shall not be liable for losses incurred by Portal User, Investor or Enterprise User caused by or resulting from any of the following:
(a) delay in the actual receipt by the Custodian of Instructions from Portal User, Investor or Enterprise User relating to any payment, redemption or other transaction, or delay in the actual receipt of such payment or in the actual occurrence of such redemption or transaction, relating to cash to form part of the Custody Assets and effected or to be effected hereunder;
(b) cash deposits made without the prior written authorization of any of the Parties or in violation of the terms of this Agreement or the permitted payment instructions communicated to the Investors;
(c) seizure of the Custody Assets by government court or any valid authority. If such seizure is attempted or completed the Custodian will give Portal User prompt notice;
(d) any event of force majeure or other event beyond the Custodian's reasonable control, including but not limited to nationalization, expropriation, currency restrictions, acts of state or acts of god, labor disturbances among staff of the Custodian or of its nominees or agents (or of any third parties instructed by or through it or any such nominees or agents), power failures or breakdowns in communications links or equipment of the Custodian or of its nominees or agents (or of any third parties as aforesaid), or the failure or disruption of any relevant crypto exchange, clearing house, settlement system or market,
12.6 The Custodian shall be indemnified by the Portal User, Investor and Enterprise User against any liabilities, losses, damages, costs and expenses (including but not limited to legal fees) incurred by the Custodian arising out of any action taken or omitted to be taken by any Party hereunder or pursuant to any taxes or other governmental charges, and any expenses related thereto, which may be imposed or assessed with respect to the Custody Assets.
13. Regulatory Requirements
13.1 Notwithstanding any provision to the contrary, but subject to the provisions below, where the Custodian is for the time being subject to any regulatory requirements (whether made by the Government of Canada or otherwise) in relation to dealings with the Portal User, Investor or Enterprise User under this Agreement, the rights and obligations of the Custodian under the provisions of this Agreement shall be read and construed to the greatest extent permitted by, and in accordance with such applicable regulatory requirements.
14. Term, Termination and Discharge
14.1 The Custodian shall be discharged from any further duty upon release of all of the Custody Assets, together with accrued interest thereon, in accordance with the terms and conditions of this Agreement or upon its resignation or replacement as provided for herein.
14.2 Except as otherwise provided in this Agreement, the obligations of the Custodian hereunder may be terminated by any Authorized Person or the Custodian upon 10 days prior written notice to the other, or any greater length of time it may take to clear any Custody Assets relating to the Portal User’s financing transaction.
14.3 If notice of termination is given by the Custodian, Portal User shall, forthwith following the receipt of such notice, deliver a written notice to the Custodian specifying the wire instructions and the names of the persons to whom the Custodian shall (at the cost and expense of Portal User by wire, unless by such other method(s) and/or to such location(s) as the parties may agree) deliver or transfer the Custody Assets. If such notice is not received within 5 business days, the Custodian may deliver the Custody Assets to the Enterprise User by cheque.
14.4 In the event of a dispute the Custodian will only act upon instructions received from the Enterprise User and in the event of any issues or litigation arising, funds shall be transferred to the Enterprise User.
14.5 The maximum amount of time the Custodian will hold funds without additional fees being incurred is six months. All funds are expected to be transferred as directed by an Authorized Person upon closing of an Investor’s subscription and payment of the Custodian’s fees.
14.6 In all circumstances the Custodian shall only deliver or transfer the Custody Assets after payment of all amounts owed to the Custodian hereunder have been made and the Custodian’s liability shall be limited to the amount of its fees.
15. Disclosure, Use and Sharing of Information
15.1 The Parties agree to use their reasonable efforts to keep confidential any information that either of them may receive in relation to the custody arrangements, each party agrees and understands that the other may disclose such information if required to do so by any applicable law, statute or other regulation of or by way of court order or similar process enforceable in any relevant jurisdiction or if required to do so by any regulatory body or self-regulatory organization (whether of a governmental nature or otherwise) in any relevant jurisdiction and to whose authority the relevant party is (whether or not through force of law) subject or otherwise accustomed to act.
15.2 The Portal User agrees to share KYC information with Custodian and/or Custodian's downstream banks and/or payment processing service providers if applicable when requested by Custodian within 5 days of said request under the terms of this agreement. Custodian reserves the right to freeze any Portal User Custody Assets until said KYC information is provided to Custodian and/or Custodian's downstream providers if applicable.
15.3 The Custodian is hereby authorized and directed to make all such filings as it considers to be necessary or desirable, in accordance with all applicable laws and practices, in accordance with the fulfillment of its obligations hereunder.
16. Successors and Assignment
16.1 This Agreement shall bind and ensure for the benefit of the parties hereto and their respective successors, provided that neither party may assign, transfer or charge any of its rights and benefits hereunder without the prior written consent of the other party.
17.1 Except as otherwise provided, all requests, demands or other communications between the parties or notices provided in connection herewith, including but not limited to Instructions, shall be in writing, delivered by email, hand delivered or sent by first class (prepaid) post or airmail, telex, S.W.I.F.T., email or such other means as may from time to time be expressly agreed in writing between Portal User and the Custodian, addressed to the email address furnished from time to time by the relevant addressee to the other party.
17.2 All requests, demands or other communications or notices as aforesaid shall be deemed effective only if sent by email upon reply.
18. Service levels
18.1 Custodian will be available for urgent support by email at email@example.com during regular business hours and by phone at 1-855-550-1683. Normal business hours are 9 am to 6 pm Monday to Friday Eastern Standard time. Custodian will respond to email tickets within business hours. Urgent email communications are sent to Portal User's designated email address.
18.2 All pending transactions are sent to Custodian banks once daily at 2 pm Eastern Standard Time and settled two business days later. By example, a file posted at 1 PM on Monday is funded Wednesday (typically the recipient's bank will post to their account Wednesday as well however some banks may only post on Thursday
19. Responsibility for Fund Transfers
19.1 Any fund transferred by Investors and any transactions that have been authorized by Portal User’s Enterprise User are considered to be immutably submitted unless otherwise directed by an Authorized Person.
19.2 Errors or omissions in the submitted transactions are the responsibility of the applicable Investor and/or Portal User and their Enterprise User. Custodian will make all reasonable efforts to mitigate such errors once Portal User and/or Enterprise User makes Custodian aware of the error but monetary responsibility remains with Portal User. Portal User will be responsible for any costs incurred by Custodian while attempting to mitigate the errors or omissions. Custodian will make every effort to track missing wires but responsibility for missing Custody Assets lies with the Site Visitor
19.3 Portal User acknowledges that Custodian and third party financial institutions involved in processing Wire Payments may rely solely on any account or identification number(s) or codes provided and will not seek to confirm whether the numbers specified corresponds with the name of the beneficiary or the beneficiary’s financial institution provided in the Wire Payment Instructions and are not obliged in any other way to verify the information contained in the Wire Payment Instructions.
19.4 Any action Custodian takes based on Portal User’s Wire Payment Instructions will have the same legal effect and will bind Portal User as fully and effectually as if the instructions had been given writing and signed by Portal User’s duly authorized officer(s), (howsoever or by whomsoever such instructions have been given, or whether the person(s) purporting to give such instructions was or was not Portal User’s officer(s) or employee’s) provided the instructions have been authorized by Portal User using two-factor authentication.
19.5 Wire Payment Instructions executed by Custodian are irrevocable. Custodian cannot guarantee a return of Custody Assets without charge or fee to Portal User. If Custodian is able to obtain a return of Custody Assets, Custodian will credit Portal User’s account less any applicable charges or fees at Custodian’s quoted rate of exchange (where Portal User has requested foreign currency exchange) on the date such Custody Assets are returned to Custodian.
19.6 To execute Portal User’s Wire Payment Instructions, Custodian has the right to modify or update Bank Maintained Templates as conditions change within the various payment networks, including amendments to interbank address codes, payment networks or correspondent banking arrangements, without prior notice to Portal User.
19.7 Portal User acknowledges that Custodian may delay the sending of a Wire Payment in the event that any restrictions applicable to Custodian in any clearing system used to effect the Wire Payment, including, without limitation, insufficient credit or other limits, delay Custodian from sending the Wire Payment.
19.8 Wire Payments are subject to cut-off times, time zone differences and local laws and regulations of the destination country and Canada. Custodian reserves the right to change specific cut-off times from time to time as Custodian deems necessary provided Portal User is provided with 48-hours or greater notice.
19.9 Custodian has the right to refrain from acting on any Wire Payment Instructions that appear to contravene any law or regulation, including those related to terrorist financing or money laundering.
20. Payment Deadlines and Cut-off Times
20.1 Payment due date (value date). When the Custody Assets arrive at the account, the Custody Assets are on hold for 24 hours minimum and then +2 business days ahead of the upload date or the submit date to Credit the beneficiary’s bank account - the date that you want the Custody Assets deposited into the payee’s account;
20.2 No payout during weekends and statutory holidays.
20.3 Multi-payout transactions are acceptable provided there are sufficient Custody Assets to execute the transaction and the Enterprise User provides a written direction from the Portal User in a format acceptable to the Custodian.
21.1 In addition to the indemnification provided for in other sections of the Terms and Conditions, the Portal User, Investors and Enterprise Users will indemnify and save Custodian and its Representatives harmless against any and all Claims, directly or indirectly incurred by or taken against Custodian or its Representatives which are the direct or indirect result of any Wire Payment, whether by reason of:
(a) unauthorized use of the Wire Payment Service;
(b) systems failure, malfunction or delay;
(c) failure to provide the Wire Payment Service for any reason outside Custodian’s control, including, without limitation, the acts or omissions of or the insolvency or bankruptcy of other financial institutions, or
(d) for any incorrect or improper payment to any person arising out of the processing of any Wire Payment Instructions,
(e) breach of anti-terrorism or other laws in force,
except if such Claims are caused solely by Custodian’s gross negligence or willful misconduct.
22. Entire Agreement. These terms and conditions constitute the entire agreement and understanding of the parties with respect to its subject matter and supersedes any and all prior oral communications and/or other written agreements between them.
23. General Conditions of the Custodian. The other terms and conditions of the Custodian and the operation of the DealMaker site in force from time to time and as provided by the Custodian to other Parties, shall be applicable, save that if such terms conflict with the terms hereof, these terms and conditions shall prevail.
24. Governing Law. This agreement and any Instructions given hereunder shall be governed by and construed in accordance with the Federal laws of Canada and the Province of Ontario and the Parties hereby irrevocably attorn to the courts of the Province of Ontario.