1-11-22 Trading Terms

Marketplace Trading Terms and Conditions

VERSION

11 January 2022

Please read these Trading Terms carefully. By clicking the “I Accept” button or similarly labelled acceptance button or checkbox on your computer screen with respect to these Trading Terms, at the time they are presented to you on your computer screen, you will be acknowledging that you have read and agree to be legally bound by these Trading Terms, under the mutual written assent of you and XCLAIM.

1. Definitions

1.1. “Affiliate” means, as to a specified Person, another Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or under common control with the specified Person. As used herein, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise Voting Power, by contract or otherwise and “controlling” and “controlled” shall have meanings correlative thereto.

1.2. “Auctioneer” means any Person that is engaged in or advertises or otherwise holds itself out as being available to engage in, the calling for, the recognition of, and the acceptance of, offers for the purchase of goods at an auction.

1.3. “Bankruptcy Case” means any proceeding commenced by or against any obligor, under any provision of the Bankruptcy Code or under any other federal or state bankruptcy or insolvency law, and all converted or succeeding cases in respect thereof.

1.4. “Bankruptcy Code” means title 11 of the United States Code, 11 U.S.C. § 101, et seq.

1.5. “Bankruptcy Court” means any of the U.S. bankruptcy courts to which Bankruptcy Cases are referred under 28 U.S.C. § 157(a), or any other court of the United States before which a Bankruptcy Case is pending.

1.6. “Bid” means a Buyer’s Offer to purchase a Claim from a Creditor. A Bid includes a Purchase Price and a Purchase Agreement.

1.7. “Broker Dealer” means any Person that is in the business of buying and selling “securities” as defined by federal or state Law on behalf of its customers or its own account or both.

1.8. “Buyer” means any Person seeking to purchase or acquire a Claim or any portion or interest therein utilizing the Marketplace.

1.9. “Claim” means any right to payment against a Debtor, as more particularly defined in section 101(5) of the Bankruptcy Code, as may be listed on a Debtor’s schedules of liabilities filed with the Bankruptcy Court and/or in a Proof of Claim filed with the Bankruptcy Court in a Debtor’s Bankruptcy Case.

1.10. “Claim Face Amount” means the total dollar amount claimed that is set forth with respect to a Claim, whether or not such total dollar amount is disputed, contingent, or the subject of an unresolved objection. Where a Claim sets forth any combination of a stated amount and additional unstated, unliquidated or potential additional claim amounts, such additional unstated, unliquidated or potential additional claim amounts shall not be deemed to be part of the Claim Face Amount.

1.11. “Claim Support Information” means information and documents supporting a Creditor’s Claim including, but not limited to, documents that evidence and support liability of the Debtor on the Claim and the amount of the Claim, as may be reasonably required to be provided by a Seller to a Buyer as part of a Buyer’s diligence.

1.12. “Claim Trade” means a Primary Trade or a Secondary Trade.

1.13. “Commission” means the commission due to XCLAIM at Trade Closing, calculated based on the rates set forth in Section 8 of the Buyer’s Marketplace Access Agreement and allocated in the manner set forth in Section 6 hereof.

1.14. “Counter” means the simultaneous rejection of an existing Offer and submission of a new Offer.

1.15. “Creditor” means any Person holding a Claim, or any portion of or rights in a Claim and includes both an Initial Creditor and a Secondary Creditor.

1.16. “Debtor” means a debtor in a Bankruptcy Case, as determined by 11 U.S.C. § 109.

1.17. “Initial Creditor” means, with respect to a Claim, the holder of such Claim or any portion of or rights in such Claim, as of the Petition Date or the date the Claim first arose, if such date is after the Petition Date.

1.18. “Information Providers” means parties from whom XCLAIM retrieves or receives data and information, including data and information used to list Claims and related information on the Marketplace.

1.19. “Intellectual Property Rights” means all past, present and future rights of the following types, whether registered or unregistered, which may exist or be created under the Laws of any jurisdiction: (a) rights associated with works of authorship, including copyrights, design rights, and moral rights; (b) trademark, trade name, service name, trade dress and service mark rights, and similar means of identification and similar rights, including all goodwill associated with the foregoing; (c) trade secret rights and other rights in know-how and confidential or proprietary information.

1.20. “Laws” means, collectively, all international, foreign, federal, state, provincial and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities.

1.21. “Losses” means, in respect of any matter, all direct or indirect, as well as consequential: losses, damages, liabilities, deficiencies, claims, demands, actions, proceedings, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind (including, without limitation, reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers).

1.22. “Marketplace” means the XCLAIM Marketplace as described and summarized in Section 5 hereof.

1.23. “Marketplace Services” means any services offered at any given time on the Marketplace to any Users.

1.24. “Offer” means an offer from a Buyer or Creditor to be legally bound to a Claim Trade.

1.25. “Person” means any corporation, limited liability company, joint venture, association, division, company, partnership, other legal entity, or individual.

1.26. “Petition Date” means the date of commencement of a Debtor’s Bankruptcy Case.

1.27. “Policies” means the XCLAIM general website policies published on www.x-claim.com at any given time, including the Terms of Use and the Privacy Policy.

1.28. “Primary Trade” means any transaction involving the sale, assignment, or transfer of any part of, or any rights with respect to, a Claim by the Initial Creditor to a Buyer.

1.29. “Privacy Policy” means the Privacy Policy published on www.x-claim.com at any given time.

1.30. “Prohibited Use Policy” means the policy set forth in Section 8 hereof.

1.31. “Purchase Agreement” means a contract between a Buyer and a Seller to provide for the definitive terms of the parties’ agreement to consummate a Claim Trade.

1.32. “Purchase Price” means the cash value for a Claim Trade.

1.33. “Secondary Creditor” means, with respect to a Claim, a Buyer that holds such claim, or any portion of or rights in such Claim, as the result of a Claim Trade.

1.34. “Secondary Seller” means the Seller, assignor, or transferor in a Secondary Trade.

1.35. “Secondary Trade” means any transaction involving the sale, assignment, or transfer of any part of, or any rights with respect to, a Claim by a Secondary Creditor to a Buyer.

1.36. “Seller” Means any Creditor who has entered into a Trade Confirmation with a Buyer, and includes a Secondary Seller except where noted otherwise in these Trading Terms.

1.37. “Settlement Payment” means payment of good funds to close upon a Claim Trade by paying in full all consideration due under the applicable Purchase Agreement.

1.38. “Terms of Use” means the Terms of Use policy published on www.x-claim.com at any given time.

1.39. “Trade Confirmation” means an agreement reached by a Creditor and a Buyer on the Marketplace.

1.40. “Trade Closing” means the date and time at which a Buyer performs under a Purchase Agreement to pay the Purchase Price to the Seller.

1.41. “User” means any individual who accesses the Marketplace.

1.42. “Voting Power” shall mean, with respect to any Person, the exclusive ability to control, through the ownership of shares of capital stock, partnership interests, membership interests or otherwise.

1.43. “XCLAIM” as used herein, unless otherwise specified, means XCLAIM INC.

1.44. “you” as used herein refers to the Person presented with these Trading Terms, which may be in a capacity as a User, Creditor or Buyer.

2. Mutual Assent to be Legally Bound by These Trading Terms.

2.1. Binding Agreement. These Trading Terms constitute a legally binding agreement between you and XCLAIM governing any access to the Marketplace.

2.2. With respect to Creditors, these Trading Terms are presented for review, and required to be agreed upon by such Creditor, at the time a Creditor seeks to respond to a Bid on the Marketplace.

3. Express Consent to E-Signing and E-Contracts on the Marketplace.

3.1. These Trading Terms are an electronic contract that set out the legally binding terms of your use of the Marketplace and the Marketplace Services.

4. Term.

4.1. These Trading Terms, as may be amended from time to time, remain in effect without expiration or stated term.

5. The Marketplace.

5.1. The XCLAIM Marketplace is an online trading platform that provides Users with Marketplace Services, including but not limited to services that enable Users to:

(a) access information about a Bankruptcy Case; (b) access information about a Claim; (c) submit and receive a Bid for a Claim; (d) accept, reject or Counter a Bid for a Claim; (e) enter into a Trade Confirmation and Purchase Agreement.

5.2. Your Relationship with XCLAIM and the Marketplace.

(a) XCLAIM is not and does not through its operation of the Marketplace become a party to any contract between a Buyer and Creditor. (b) XCLAIM is not a Broker Dealer or Auctioneer.

6. Marketplace Trading Actions, Rules and Requirements.

6.1. General Trading and Bidding Rules.

(a) All Claims listed on the Marketplace are potentially available to be sold and purchased through the Marketplace. (b) Your decision to engage in any Claim Trade shall be based solely on your own investigation. (c) Withdrawal Rights as to any Offers.

6.2. Initial Bids. Any Buyer may Offer to purchase a Claim listed on the Marketplace, by submitting a Bid to the Creditor through the Marketplace.

6.3. Creditor Responses to a Bid.

(a) A Creditor may accept, reject, or Counter a Bid. (b) If a Creditor accepts a Bid, such Creditor agrees that it is entering into a Trade Confirmation.

6.4. Buyer Responses to a Counter. If a Creditor has submitted a Counter, the Buyer may accept, reject, or Counter.

6.5. Subsequent Counters. Until such time a Counter is accepted, rejected, or withdrawn, Buyer and Creditor may continue to submit Counters.

6.6. Acceptance and Trade Confirmation. You acknowledge that Trade Confirmations are essential to the proper functioning of the Marketplace.

6.7. Effect of a Trade Confirmation. No other Bids may be submitted on such Claim on the Marketplace.

6.8. Purchase Agreements.

(a) Each party to a Trade Confirmation is required to negotiate and seek to enter into a Purchase Agreement. (b) A Buyer shall determine the form of Purchase Agreement to be submitted as part of its Bid.

6.9. Creditor Payment Information and Creditor Review.

(a) Payment Information. To assist a Buyer and Seller with satisfying their obligations under a Purchase Agreement, XCLAIM may request that the Seller provide information. (b) Identity Verification.

6.10. Trade Closing and Settlement Payments. At Trade Closing, the following payments are required:

(a) Buyer shall pay, and Seller shall receive, the Purchase Price.

7. Confidentiality of All Pricing Information.

7.1. All pricing information contained in any Offer and/or related communications is highly confidential.

8. Prohibited Use Policy and Prohibited Activities.

8.1. Exclusivity of the Marketplace. Use of the Marketplace to submit an Offer for a Claim, or to communicate with any other User related to such Claim, followed by an off-Marketplace Claim Trade for such Claim, is strictly prohibited.

8.2. Other Prohibited Activities.

9. Suspension or Termination of Marketplace Access.

9.1. Without limiting other remedies available to XCLAIM, in equity or under these Trading Terms, XCLAIM may suspend or terminate your access to the Marketplace if you have, or if XCLAIM believes that you have, violated these Trading Terms.

10. Intellectual Property.

10.1. You acknowledge that XCLAIM is the owner of all Intellectual Property Rights which subsist in the Marketplace.

11. Third Party Links.

11.1. The Marketplace may contain links to third-party websites or resources that XCLAIM does not own or control.

12. Disclaimers.

12.1. XCLAIM has no control over and does not guarantee the validity, quality, suitability or legality of Claims.

12.2. The Marketplace is provided “as is” and “as available.”

13. Force Majeure.

13.1. You agree that XCLAIM will not be liable or responsible for any failure in, or delay to, the provision of Marketplace Services, where such failure or delay has arisen or is anticipated to arise as a direct or indirect result of...

14. Limitation of Liability.

14.1. XCLAIM shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages.

15. Indemnity.

15.1. You agree to indemnify and hold XCLAIM harmless from any and all Losses arising out of or in connection with...

16. Dispute Resolution.

16.1. Complaint Process. If you have a dispute with XCLAIM, you agree to first contact XCLAIM through our support team to attempt to resolve any such dispute amicably.

17. Privacy.

17.1. Our collection and use of personal information in connection with your access to and use of the Marketplace as a public website is described in the Privacy Policy.

18. Notices.

18.1. XCLAIM may give notice by means of a general notice on the Marketplace.

19. General.

19.1. Assignability. XCLAIM may assign its rights and novate or transfer obligations which arise under these Trading Terms.