CERTIFID TERMS AND CONDITIONS FOR FUNDS RECOVERY SERVICES

THESE TERMS AND CONDITIONS (“AGREEMENT”), CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN CERTIFID, INC. (“CERTIFID”), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU REGISTER, ACCESS OR USE THE SERVICE, “CUSTOMER”), REGARDING ACCESS AND USE OF THE SERVICES (DEFINED BELOW).  YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF CUSTOMER.  BY SELECTING THE “ACCEPT”, “SIGN UP” OR SIMILAR BUTTON OR CHECKBOX REFERENCING THIS AGREEMENT OR BY ACCESSING OR USING THE SERVICES, YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.

1. Engagement.  By executing an order form, completing the CertifID registration process or otherwise initiating the funds recovery process with CertifID, Customer hereby engages and authorizes CertifID, as a funds recovery service provider, to provide certain funds recovery services to Customer, subject to the terms and conditions set forth below.

2. Services.  

2.1 Funds Recovery Services.  CertifID will cause its employees or representatives, as independent contractors, to perform services in connection with recovering Customer’s funds sent via wire transfer by Customer to a fraudulent bank account (the “Services”) subject to the Assumptions (defined below).  Nothing in this Agreement, will be deemed to require CertifID to undertake any act or perform any services which in its good faith judgment would be misleading, false, libelous, unlawful, in breach of a contract, or otherwise prejudicial to Customer’s or CertifID’s interests.  CertifID reserves the right to decline to provide Services if the Assumptions are false or otherwise incorrect.  In addition, Customer agrees to cooperate fully with CertifID and to execute and/or deliver further documents and materials and to take such other actions as may be reasonably requested by CertifID to carry out the intent and purposes of this Agreement.  

2.2 Assumptions.  The following assumptions (“Assumptions”) are hereby acknowledged by the parties and apply to the performance of the Services under this Agreement:

( i ) Customer sent funds via wire transfer, automated clearing house payment, and/or real time payment, to a fraudulent account;

( ii ) Customer requested the Services through CertifID’s online portal no later than seventy-two (72) hours from the time Customer initiated the transfer of funds to the wrong or fraudulent bank account;

( iii ) Customer has provided CertifID with accurate and not deliberately misleading information;

( iv ) Customer’s failure to timely notify CertifID that Customer’s funds have been diverted to a fraudulent account may result in the inability to provide the Services;

( v ) CertifID’s ability to successfully provide the Services is dependent on the action or inaction of third parties that are outside of the control of the parties; and

( vi ) Customer has not engaged, and will not engage, any other fraud recovery or other similar service in connection with the same set of facts or circumstances.

3. Termination.

3.1 Termination.  This Agreement may be terminated immediately or on the date specified in the written notice by the party not at fault if the other party commits any material breach of this Agreement and fails to remedy such breach (insofar as such breach is capable of remedy) within thirty (30) days after receiving written notice of such breach from the party not at fault; provided, however, Customer shall be deemed to have committed a material breach not capable of cure in the event of: any breach of Section 6.1 hereto. Without limiting the foregoing, CertifID may terminate this Agreement for convenience at any time and without any liability to Customer.

4. Personally Identifiable Information.

4.1 Definition.  “Personally Identifiable Information” means any Customer information or data CertifID processes or uses in providing the Services that identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in CertifID’s possession or control, such as Customer’s name, address, social security number or other identifying number or code, telephone number, bank account information or other financial information.

4.2 Use of Personally Identifiable Information.  Each party will comply with all applicable privacy and other laws and regulations relating to protection, collection, use, and distribution of Personally Identifiable Information. In no event will CertifID sell or transfer Personally Identifiable Information to third parties other than its affiliates or for use in CertifID’s other services or products offered to its customers, or otherwise provide third parties other than its affiliates with access thereto, except (i) in the performances of the Services, or (ii) with any of its third-party service providers assisting CertifID with the performance of the Services hereunder. If there is a suspected or actual breach of security involving Personally Identifiable Information, CertifID will promptly notify Customer after becoming aware of such occurrence.  

4.3 Data Return and Destruction.  On termination or expiration of this Agreement or upon Customer’s request, CertifID will securely destroy or, if directed in writing by the Customer, return and not retain, all or any Personally Identifiable Information related to this Agreement in its possession or control, except (i) for one copy that CertifID may retain and use for audit purposes; (ii) for use in CertifID’s other services or products offered to its customers; and (iii) if any law, regulation, or government or regulatory body requires CertifID to retain any documents or materials that CertifID would otherwise be required to return or destroy, in which case, CertifID will notify Customer in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.  For the avoidance of doubt, CertifID may only use this retained Personal Identifiable Information as provided for in this Agreement.

4.4 Platform Data and Generalized Knowledge.  In the course of providing the Services, CertifID may collect statistical data and performance information, analytics, meta-data or similar information, generated  through instrumentation and logging systems, regarding the operation of the Services, including Customer’s use of the Service (the “Platform Data”). CertifID may collect Platform Data and use it for any internal business purpose, provided however, that (i) Platform Data will not include any data collected from Customer unless it is aggregated and/or anonymized such that Customer cannot be identified, and (ii) CertifID will not disclose Platform Data to any third party in a manner that allows such third party to identify Customer.  Customer agrees that CertifID is free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) acquired during provision of the Services under this Agreement (including without limitation, that which it could have acquired performing the same or similar service for another customer).  

5. Confidentiality.

5.1 Definition.  “Confidential Information” means: (i) all non-public information (including trade secrets, proprietary information, and information about services) relating to the activities of either party that is either marked or otherwise identified as confidential or proprietary, or that a reasonable person would understand to be considered confidential (even if not marked or identified as confidential); (ii) Personal Identifiable Information; and (iii) all information that the either party is obligated by law or contract to treat as confidential for the benefit of third parties, which may include personal, financial, or health information about individual consumers.  Confidential Information shall not include information that (x) is generally known, or readily ascertainable by proper means, by the public other than through a breach of this Agreement; (y) was known by the non-disclosing party on a non-confidential basis prior to receipt under this Agreement; or (z) is rightly received by the non-disclosing party from a third party not subject to any nondisclosure obligations with respect to the Confidential Information.

5.2 Nondisclosure Obligation.  Each party shall hold the other party’s Confidential Information in trust and confidence at all times and not disclose, reveal, or divulge any Confidential Information, directly or indirectly, intentionally or negligently, to any person or entity, for any purpose or reason, without the other party’s express written consent.

5.3 Use Limitation.  The parties agree not to make each other's Confidential Information available in any form to any third party or to use each other's Confidential Information for any purpose other than as specified in this Agreement.  Each party’s Confidential Information shall remain the sole and exclusive property of that party, except as otherwise stated herein. Notwithstanding termination or expiration of this Contract, CertifID and Customer acknowledge and agree that their obligations of confidentiality with respect to Confidential Information shall continue in effect for a total period of three (3) years from the acceptance of this Agreement by Customer.

5.4 Exceptions.  If either party receives an order or other compulsory instrument issued by or under the authority of a court or governmental agency that requests any part of the Confidential Information, that party shall: (i) promptly provide the other party with written notice of the existence, terms, and circumstances surrounding the order; (ii) consult with the other party on the advisability of taking steps to resist or narrow the order; (iii) if disclosure of Confidential Information is required, furnish only the portion of the Confidential Information as the other party is advised in writing by its counsel is legally required to be disclosed; and (iv) cooperate with the other party in its efforts to obtain an order excusing disclosure of the Confidential Information, or an order or other reliable assurance that confidential treatment will be accorded to the portion of the Confidential Information that is required to be disclosed.

5.5 Limitations.  Customer agrees it will not seek to hold CertifID or its personnel criminally or civilly liable under any applicable law for disclosing Customer’s or its affiliates’ Confidential Information where such disclosure is made (i) in confidence to a federal, state, or local governmental official or an attorney, solely for the purpose of reporting or investigating a suspected violation of law; (ii) unknowingly, inadvertently (including negligence but excluding gross negligence) or through methods beyond CertifID’s reasonable control (e.g., data breach); or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

6. Representations and Warranties.

6.1 Customer Representations.  Customer covenants, represents and warrants:

( i ) that all information supplied to CertifID will be accurate and not deliberately misleading:

( ii ) that it will promptly inform CertifID should Customer receive any communication from its bank or financial institution related to the Services, including, without limitation, when Customer receives compensation or recovery payments for claims made by CertifID on Customer’s behalf;

( iii )  that it authorizes CertifID to perform the Services and to communicate and/or negotiate with third parties (including banks and financial institution) on Customer’s behalf in providing the Services;

( iv ) that it will not accept any offer of compensation from its bank or financial institution in relation to the Services without first communicating that offer to CertifID;

( v ) that it will not remove or cancel from its bank or financial institution CertifID’s authority to act on Customer’s behalf in performing the Services; and

( vi ) that it will promptly notify CertifID if Customer changes its contact information.

6.2 DISCLAIMER OF WARRANTIES.  THE SERVICES ARE PROVIDED “AS IS”, “WHERE IS” AND CERTIFID DOES NOT MAKE AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SERVICES OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ALL WAR( i ) RANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. CERTIFID WILL USE COMMERCIALLY REASONABLE EFFORTS CONSISTENT WITH INDUSTRY STANDARDS TO PROVIDE THE SERVICES; HOWEVER, CERTIFID MAKES NO PROMISES, REPRESENTATIONS OR GUARANTEES REGARDING THE OUTCOME OF THE SERVICES. CERTIFID DOES NOT PROVIDE LEGAL OR FINANCIAL SERVICES TO CUSTOMER AND CERTIFID WILL NOT GIVE CUSTOMER FINANCIAL OR LEGAL ADVICE AT ANY TIME, EITHER VERBALLY OR IN WRITING. SHOULD CUSTOMER’S BANK OR FINANCIAL INSTITUTION DEEM IT NECESSARY TO CLOSE AN ACCOUNT OF CUSTOMER, CERTIFID ACCEPTS NO LIABILITY, CONSEQUENTIAL LOSS, OR OTHER RESULT OF THE ACCOUNT CLOSURE.  

7. Indemnities.

7.1 Customer Indemnity.  Customer shall fully indemnify, defend, and hold harmless CertifID, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “CertifID Indemnitee”) from and against any losses, attorneys’ fees, expenses, costs, damages, penalties, assessments, or interest assessed against or incurred by an CertifID Indemnitee (each, a “Claim”) made or brought by a third party or any person that receives the benefit of the Services contemplated hereunder against any CertifID Indemnitee with respect to the Services performed for Customer hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Customer to CertifID; (ii) the use of any information, including Personally Identifiable Information, furnished by Customer to CertifID; (iii) risks or restrictions known by Customer where Customer nonetheless elected to proceed; (iv) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Customer’s products and services; (v) any material breach of the terms of this Agreement by, or any act of omission of, Customer relating to the Services; and (vi) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Customer.  

7.2 Third Party Investigations of Customer.  Customer shall reimburse CertifID for all costs and expenses (including attorneys’ fees and costs) incurred by CertifID resulting from any third-party investigation of the acts or practices of Customer including, without limitation, any costs or expenses related to compliance with any third-party subpoena or other discovery request. Should CertifID be served with a third-party subpoena in connection with Services it performed for Customer, CertifID shall promptly advise Customer and consult with Customer regarding CertifID’s response to the subpoena to the extent the subpoena seeks Customer’s Personally Identifiable Information so that Customer may have an opportunity to seek appropriate relief.

7.3 Notification of Claims.  CertifID shall provide written notice to Customer of any Claim or demand which CertifID has determined has given or could give rise to a right of indemnification under this Agreement. Customer shall promptly undertake to discharge its indemnification obligations hereunder.  Additionally, Customer shall employ counsel reasonably acceptable to CertifID to defend any such Claim or demand asserted against CertifID.  CertifID shall have the right to participate in the defense of any such Claim or demand at Customer’s expense. CertifID shall reasonably cooperate with Customer in any such defense.  In addition, CertifID shall at all times have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on its business and shall have the right to settle any Claims, even if such settlement might give rise to liability of Customer, without the prior consent of Customer; provided, however, Customer may not settle or negotiate any Claim or demand without CertifID’s prior written consent, which can be withheld for any reason.

7.4 LIMITATION OF LIABILITY.  CERTIFID SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTIES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS, BUSINESS INTERRUPTION, OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR SHALL CERTIFID’S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID FOR THE PRECEDING THREE (3) MONTHS BY CUSTOMER OR ITS AGENT OR INSURANCE PROVIDER TO CERTIFID UNDER THIS AGREEMENT.

8. Relationship of the Parties.

8.1 CertifID’s Autonomy.  The parties acknowledge and agree that an independent contractor relationship is formed between Customer and CertifID pursuant to this Agreement.  CertifID has the authority to control and direct the performance and the details of the Services, as governed by its own independent judgment and discretion. Customer may not control, direct, or otherwise supervise CertifID’s employees, agents, or contractors in the performance of the Services.  CertifID shall: (i) determine when, where, and how the Services are performed; (ii) determine the location from which the Services are performed; and (iii) determine the order and sequence in which tasks are performed related to the Services.

8.2 Exclusivity.  Customer agrees to use CertifID exclusively for the Services.  Notwithstanding the foregoing, CertifID remains free to perform services for other persons and entities, and to make itself available to the public for such purposes.

8.3 No Conflicts.  Except for known conflicts that have been disclosed to CertifID (in each case Customer has recused itself fully from any such conflict) Customer represents and warrants to CertifID that (i) the execution, delivery, and performance of this Agreement by Customer do not and shall not conflict with, breach, violate, or cause a default under any contract, agreement, instrument, order, judgment, decree, or other legal obligation to which Customer is a party or by which Customer is bound; (ii) except for this Agreement, Customer is not a party to or bound by any agreement with any person that would interfere with the performance of the Services hereunder; and (iii) upon the execution of this Agreement by Customer, this Agreement shall be a valid and binding obligation of the parties, enforceable in accordance with this Agreement.  Customer agrees to disclose known or potential conflicts of interest to CertifID.  

9. General Provisions.

9.1 Advertising.  Customer agrees that CertifID may use Customer’s or its customer’s name, picture, logo, likeness or testimonials (collectively “Customer Likeness”) for any advertising purpose.  Customer hereby waives any right to the Customer Likeness and will ensure that any person providing any testimonials waives any rights to the Customer Likeness.

9.2 Reformation and Severability.  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law or rule, such invalidity, illegality, or unenforceability will not affect any other provision, but such invalid, illegal, or unenforceable provision will be reformed, construed, and enforced so as to render it valid, legal, and enforceable consistent with the intent of the parties insofar as possible and, if reformation is not possible, then severed and leaving all other language in this Agreement in full force and effect.

9.3 Governing Law and Venue.  All issues and questions concerning the construction, validity, enforcement, and interpretation of this Agreement will be governed by, and construed in accordance with, the laws of the state of Michigan, United States, without giving effect to any choice of law or conflict of law rule or provision that would cause the application of the laws of any jurisdiction other than the state of Michigan.  If a proceeding or claim relating or pertaining to this Agreement, or any other aspect of CertifID’s engagement with Customer, is initiated by any party hereto, such proceeding or claim shall and must be filed in either any state court of competent jurisdiction located in Grand Rapids, Michigan, or in the United States District Court for the Western District of Michigan.

9.4 Force Majeure.  Any delay or failure of either party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, acts of God, acts of a governmental entity, embargoes, explosions, riots, wars, acts of terrorism, fires, or floods, epidemics, pandemics, quarantine restrictions, or freight embargoes) (each, a “Force Majeure”).  Notwithstanding anything in this Section to the contrary, Customer actions or agreement disputes with its bank or financial institution are not, in each case, a Force Majeure and will not, in each case, excuse performance by Customer under this Agreement or otherwise excuse performance by Customer on theories of force majeure, commercial impracticability, or otherwise, and Customer expressly assumes these risks.

9.5 Notices.  Any notice or other instrument to be given hereunder must be in writing and, except as otherwise provided in this Agreement, will be deemed to be duly given (i) if mailed, it will be deemed to be given three (3) days following the date of mailing, (ii) sent by facsimile or hand delivered to the party to whom such communication is intended to be given and any notice so delivered or sent will be deemed to have been duly given at the time of service on the day on which it was so delivered or (iii) by electronic mail to the addresses disclosed during the registration process or to such other address as the notifying party has been advised in writing by the other party hereto.

9.6 Waiver.  If either party should waive any breach of any provision of this Agreement, such person shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision of this Agreement. To be effective, a waiver must be in writing and signed by the party granting the waiver.

9.7 Headings.  The headings of the Sections hereof are inserted for convenience only and shall not be deemed to constitute a part hereof nor to affect the meaning thereof.

9.8 Successors and Assigns.  Except as otherwise provided herein, this Agreement shall bind and inure to the benefit of CertifID and be enforceable by CertifID against Customer’s respective successors, assigns, heirs, executors, and legal representatives.

9.9 Assignment.  Customer may not assign any part or all of this Agreement, or delegate any of its respective rights or obligations under this Agreement, without CertifID’s prior written consent, provided, however, CertifID may freely assign, subcontract or delegate its respective rights or obligations under this Agreement.  Any attempt to assign, subcontract, or delegate in violation of this Section is void in each instance.

9.10 Survival.  Sections of this Agreement, the performance of which by either or both parties, or by their sense and context, are intended to survive, will survive the completion, expiration, termination or cancellation of this Agreement.

9.11 Rights and Remedies Cumulative.  Any enumeration of CertifID’s or its affiliates’ rights and remedies set forth in this Agreement is not intended to be exhaustive. The exercise of any right or remedy under this Agreement does not preclude the exercise of any other right or remedy.  All rights and remedies are cumulative and are in addition to any other right or remedy set forth in this Agreement, any other Agreement between the parties, or which may now or subsequently exist at law or in equity, by statute or otherwise.

9.12 Third Party Beneficiaries.  Nothing herein shall create or establish any third-party beneficiary hereto nor confer upon any person not a party to this Agreement, any rights or remedies of any nature or kind whatsoever, under or by reason of this Agreement; provided, however, that the CertifID’s affiliates and CertifID Indemnitee are deemed third party beneficiaries entitled to exercise rights hereunder and seek enforcement hereof.

9.13 Claims Barred.  Customer agrees that, unless a shorter period of limitations applies, any claim, suit, action, administrative charge, or other proceeding arising out of this Agreement, including, without limitation, claims arising under any federal, state, or local civil rights law, must be brought or asserted by Customer or its assigned personnel (as applicable) within one hundred and eighty (180) days of the event giving rise to the claim or be forever barred.  Customer expressly waives any longer statute or other period of limitations to the contrary.  CUSTOMER FURTHER AND EXPRESSLY HEREBY AGREES TO WAIVE ITS CONSTITUTIONAL RIGHT TO A TRIAL BY JURY AND AGREES TO SUBMIT ANY AND ALL CLAIMS TO DETERMINATION BY A JUDGE.

9.14 Voluntary Agreement.  Customer represents and warrants that it has read and understood this Agreement prior to execution.  Customer represents and warrants that it is entering this Agreement intelligently and voluntarily, without threat, coercion, undue influence, or duress being imposed.

9.15 Further Action.  The parties shall take such further steps and execute such further documents and instruments as may be necessary or appropriate to carry this Agreement into full force and effect or otherwise effectuate the intention of the parties.

9.16 Flow Down.  Customer shall require each of its customers that receive a benefit of the Services contemplated hereunder, to be bound by this Agreement unless the same are clearly inapplicable to the agreement between Customer and its customers because of legal requirements or industry practices.  Customer is responsible for ensuring that all such customers are in compliance with this Agreement.

9.17 Construction. The normal rule of construction that an agreement shall be interpreted against the drafting party shall not apply to this Agreement. In this Agreement, whenever the context so requires, the masculine, feminine or neuter gender, and the singular or plural number or tense, shall include the others.

9.18 Entire Agreement; Conflicts.  This Agreement constitute the entire agreement between CertifID and Customer relating to the subject matter hereof and supersedes any prior agreement or understandings between them.  

9.19 Modifications.  CertifID reserves the right to modify this Agreement at any time and that any such modification will be effective thirty (30) days from the date the updated Agreement has been posted on CertifID’s website.  

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