Escrow Policy

FX Escrow Terms of Service

Last Updated: October 3, 2024

These Terms of Service the (the “Terms of Service”) constitute a legally binding agreement between you (“you”) and Fossick, LLC, a Colorado limited liability company (“FX”) acting as Escrow Agent to you and any other party to a transaction utilizing FX’s escrow service (the “Escrow Service”). Your continued use of the Escrow Service constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Service.

WHEREAS, you and another party have entered into an agreement to transact business on FX’s online marketplace, The Fossick Exchange (the “Transaction”); and

WHEREAS, it is necessary for you to establish an escrow for the payment of the Transaction’s purchase price (the “Purchase Price”); and

WHEREAS, you wish FX to establish such escrow for you and to appoint FX to serve as the Escrow Agent (“Escrow Agent”) in connection with the Transaction.

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants and obligations herein contained, you agree as follows:

Escrow Amount. You understand and agree that the entire Purchase Price, inclusive of any associated fees, shall be immediately transferred the FX escrow account (the “Escrow Account”) and will be held in the Escrow Account until Closing or until ordered released as per these Terms of Service. Notwithstanding the foregoing, you may demand the return of the Purchase Price by providing written notice to the Escrow Agent at any time within seventy-two (72) hours of transferring the Purchase Price to the Escrow Account. Thereafter, the Purchase Price, less any applicable fees, will be fully refundable for reasonable and customary failures of closure or paid to the selling party, all as more fully set forth below in Section 3.

Responsibilities of the Escrow Agent.

You agree that the Escrow Agent shall have no duties or obligations other than those specifically set forth herein. The acceptance by the Escrow Agent of their duties under these Terms of Service is subject to the terms and conditions hereof, which shall govern and control with respect to its rights, duties, liabilities, and immunities.

You agree that the Escrow Agent is not representing any party to the Transaction who will benefit from the completion of these Terms of Service and, therefore, does not owe any fiduciary duties to any such person as a client.

You understand and agree that the Escrow Agent is not a principal, participant, or beneficiary of the underlying Transaction which necessitates the Escrow Services. You agree that the Escrow Agent shall be obligated only for the performance of such duties as are specifically set forth herein and may rely on and shall be protected in acting or refraining from acting based on any instrument believed by it to be genuine and to have been signed or presented by the proper party or parties, their officers, representatives, or agents.

You understand and agree that so long as the Escrow Agent has acted in good faith or on the advice of counsel or has not been guilty of willful misconduct or gross negligence, the Escrow Agent shall have no liability under, or duty to inquire beyond the terms and provisions of, these Terms of Service, and it is agreed that its duties are purely ministerial in nature.

You understand and agree that the Escrow Agent shall not be obligated to take any legal actions hereunder which might, in the Escrow Agent’s judgment, involve any expense or liability, unless the Escrow Agent has been furnished with reasonable indemnity.

You understand and agree that the Escrow Agent is not bound in any way by any other contract or agreement between the parties hereto whether or not the Escrow Agent has knowledge thereof of its terms and conditions and the Escrow Agent’s only duty, liability and responsibility shall be to hold and deal with the Purchase Price as herein directed.

You understand and agree that the Escrow Agent shall not be bound by any modification, amendment, termination, cancellation, rescission or supersession of these Terms of Service unless the same shall be in writing and signed by all of the other parties hereto and, if their duties as Escrow Agent hereunder are affected thereby, unless they have given prior written consent thereto. Representatives of the parties can appoint a new escrow agent with the consent of the Escrow Agent.

Return of Purchase Price. You understand and agree that the Escrow Agent shall return the Purchase Price to you:

In the event the Transaction is terminated due to the failure of the other party to fulfill their obligations regarding the Transaction. Upon such termination, you must file a report with the Escrow Agent specifying the applicable event of termination (a “Termination Notice”), along with evidence of delivery of a copy of such Termination Notice to the other party and directing the Escrow Agent to distribute the Purchase Price back to you.

Upon receipt of a Termination Notice from you, the Escrow Agent shall forward such Termination Notice to the other party along with a request for a written response detailing their objection to the termination (an “Objection Notice”) within ten (10) days of the Escrow Agent forwarding the Termination Notice.

If the Escrow Agent is not in receipt of a written Objection Notice from the other party within ten (10) days following the date of the Escrow Agent’s forwarding such Termination Notice to the other party, then, on the eleventh (11th) day following the Escrow Agent’s forwarding the Termination Notice (or if the 11th day is not a business day for the Escrow Agent, then on the first business day after the 11th day), the Escrow Agent shall return the Purchase Price to you.

If the Escrow Agent is in receipt of a written objection to any Termination Notice within ten (10) days following the date of the Escrow Agent’s receipt of a Termination Notice, the Escrow Agent shall not distribute the Purchase Price until the Escrow Agent shall have received either:

non-conflicting written instructions from the parties as to the disposition of the Purchase Price in question, or

an order of an arbitrator or court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal. Upon receipt of any such written instructions or order, the Escrow Agent shall distribute such Purchase Price in accordance therewith.

Release of Funds to the Other Party. You understand and agree that Escrow Agent shall release the Purchase Price to the other party as follows:

Upon receipt of a written notice from the other party confirming the delivery and/or fulfillment of the goods and/or services subject to the Transaction (a “Fulfillment Notice”), the Escrow Agent shall forward such Fulfillment Notice to you requesting either:

Written notice from you that the goods and/or services subject to the Transaction have been received and the Transaction has been completed to your satisfaction (a “Completion Notice”); or

A written response detailing your objection to the Fulfillment Notice (a “Fulfillment Objection”) within ten (10) days of the Escrow Agent forwarding the Fulfillment Notice to you, provided however, that if the Escrow Agent is not in receipt of a Fulfilment Objection delivered by you within ten (10) days following the Escrow Agent’s receipt of a Fulfillment Notice from the other party, then on the 11th day following such receipt (or if the 11th day is not a business day for the Escrow Agent, then on the first business day after the 11th day), the Escrow Agent shall pay the Purchase Price to the other party.

If the Escrow Agent is in receipt of a written objection to any Termination Notice or Fulfillment Notice delivered to Escrow Agent within ten (10) days following the date of the Escrow Agent’s receipt of such Termination Notice or Fulfillment Notice, the Escrow Agent shall not distribute the Purchase Price until the Escrow Agent shall have received either:

non-conflicting written instructions from the parties as to the disposition of the Purchase Price, or

(ii) an order of an arbitrator or court having jurisdiction over the matter which is final and not subject to further court proceedings or appeal. Upon receipt of any such written instructions or order, the Escrow Agent shall distribute the Purchase Price in accordance therewith.

Escrow Fee. You understand and agree that an amount equal to one percent (1%) of the Purchase Price (the “Escrow Fee”) will be added to the Purchase Price as full payment for the Escrow Services. In the event that the Purchase Price is refunded by the Escrow Agent for any reason prior to Closing, the Escrow Fee shall be withheld from the return of the Purchase Price. In the event that the Escrow Funds are distributed to the other party upon Closing, the Escrow Agent shall withhold the Escrow Fee as full payment for the Escrow Services.

Closing.

You understand and agree that the Escrow Agent is hereby instructed to receive and hold the Escrow Funds in the Escrow Account until Closing, unless timely return of the Purchase Price is received by the Escrow Agent. “Closing” shall be deemed to occur upon any of the following:

The Escrow Agent’s receipt of a Completion Notice from you;

The passing of 10 (ten) days following the Escrow Agent’s receipt (or if the 11th day is not a business day for the Escrow Agent, then on the first business day after the 10th day) of a Fulfillment Notice from the other party, provided however, that the Escrow Agent is not in receipt of a Fulfillment Objection delivered by you within such ten (10) day period following the Escrow Agent’s receipt of a Fulfilment Notice.

Upon Closing, the Escrow Funds will be distributed as per instructions of the other party.

It will not be necessary for any party to be present at the Closing. The Escrow Funds shall not be released or dealt with in any manner whatsoever inconsistent with these Terms of Service, until Closing, at which time the Escrow Funds will be distributed as directed by the other party.

Indemnification. You hereby understand and agree to indemnify the Escrow Agent against, and hold the Escrow Agent harmless from anything which the Escrow Agent may do or refrain from doing in connection with its performance or nonperformance as Escrow Agent under these Terms of Service and any and all losses, costs, damages, expenses, claims, and reasonable attorneys’ fees suffered or incurred by the Escrow Agent as a result of, in connection with, or arising from or out of the acts of omissions of the Escrow Agent in performance of or pursuant to these Terms of Service, except such acts or omissions as may result from the Escrow Agent’s willful misconduct or gross negligence.

Dispute Resolution.

Disputes. You understand and agree that in the event of any dispute or disagreement solely between or among any of the parties to the Transaction (a “Dispute”), the parties shall use their best efforts to resolve any Dispute arising out of or in connection with these Terms of Service by good-faith negotiation and mutual agreement. The parties to the Dispute shall meet at a mutually convenient time and place to attempt to resolve any such Dispute.

Means of Resolution. You understand and agree that in the event that the parties to the Transaction are unable to resolve any Dispute, then any unresolved Disputes shall be finally settled by binding arbitration, and you hereby irrevocably waive, to the fullest extent provided by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to the Transaction, the Escrow Services, or these Terms of Service or the transactions contemplated thereby.

Arbitration. You understand and agree that arbitration proceedings shall be conducted under the Rules of Commercial Arbitration of the American Arbitration Association (the “AAA”). A party may withdraw from the Dispute by signing an agreement to be bound by the results of the arbitration. A party who withdraws shall have no further right to participate in the Dispute.

The arbitration panel shall consist of one arbitrator. The parties to the Dispute shall select one neutral third-party AAA arbitrator (the “Arbitrator”) with expertise in the area that is in dispute. If an Arbitrator has not been selected within five (5) business days thereafter, then an Arbitrator shall be selected by the AAA in accordance with the Commercial Arbitration Rules of the AAA. The arbitration proceeding shall be held in Denver, Colorado or such other place as agreed by the Arbitrator and all of the parties to the Dispute. Any Arbitrator who is selected shall disclose promptly to the AAA and to both parties any financial or personal interest the arbitrator may have in the result of the arbitration and/or any other prior or current relationship, or expected or discussed future relationship, with the parties or their representatives. The Arbitrator shall promptly conduct proceedings to resolve the dispute in question pursuant to the then existing Rules. To the extent any provisions of the Rules conflict with any provision of this Section, the provisions of this Section shall control.

In any final award and/or order, the Arbitrator shall apportion all the costs (other than attorney’s fees which shall be borne by the party incurring such fees) incurred in conducting the arbitration in accordance with what the arbitrator deems just and equitable under the circumstances.

Discovery shall not be permitted in such arbitration except as allowed by the rules of arbitration, or as otherwise agreed to by all the parties of the Dispute. You agree to make available to the other parties to the Dispute and to the Arbitrator, for inspection and photocopying, all documents, books, and records, if determined by the arbitration panel to be relevant to the dispute, and by making available to one another and to the arbitration panel personnel directly or indirectly under their control, for testimony during hearings if determined by the arbitration panel to be relevant to the dispute. Unless otherwise agreed to by the parties, a record of the arbitration proceedings shall be made and a transcript thereof shall be ordered for each party to the Dispute, with each party paying an equal portion of the total cost of such recording and transcription.

The Arbitrator shall have all powers of law and equity, which it can lawfully assume, necessary to resolve the issues in dispute including, without limiting the generality of the foregoing, making awards of compensatory damages, issuing both prohibitory and mandatory orders in the nature of injunctions and compelling the production of documents and witnesses for presentation at the arbitration hearings on the merits of the case. The Arbitrator shall neither have nor exercise any power to act as amicable compositeur or ex aequo et bono; or to award special, indirect, consequential, or punitive damages. The decision of the Arbitrator shall be in written form and state the reasons upon which it is based. The statutory, case law and common law of the State of Colorado shall govern in interpreting their respective rights, obligations and liabilities arising out of or related to the transactions provided for or contemplated by these Terms of Service, including without limitation, the validity, construction and performance of all or any portion of these Terms of Service, and the applicable remedy for any liability established thereunder, and the amount or method of computation of damages which may be awarded, but such governing law shall not include the law pertaining to conflicts or choice of laws of Colorado.

Any action or proceeding subsequent to any award rendered by the arbitrator in the Dispute, including, but not limited to, any action to confirm, vacate, modify, challenge or enforce the arbitrator’s decision or award shall be filed in a court of competent jurisdiction in the same county where the arbitration of the Dispute was conducted, and Colorado law shall apply in any such subsequent action or proceeding.

Escrow Agent’s Obligations in the Event of a Dispute. You understand and agree that in the event that prior to Closing, a Dispute between the parties to the Transaction, resulting in adverse claims or demands being made in connection with the Transaction, the Escrow Services, the Escrow Funds, or the Purchase Price, or in the event that the Escrow Agent is in doubt as to what action the Escrow Agent should take hereunder, the Escrow Agent may, at its option, refuse to comply with any claims or demands on it, or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, the Escrow Agent shall not be or become liable in any way or to any person for its failure or refusal to act, and the Escrow Agent shall be entitled to continue so to refrain from acting until:

The claims and rights of the parties to the Dispute shall have been fully and finally adjudicated through arbitration as provided herein; or

All differences shall have been adjusted and all doubts resolved by agreement between the parties, and the Escrow Agent shall have been notified thereof in writing signed by all parties to the Dispute.

Resignation of Escrow Agent. You understand and agree that the Escrow Agent may resign as Escrow Agent by giving written notice to the parties to the Transaction. The resignation of the Escrow Agent shall be effective, and the Escrow Agent shall cease to be bound by these Terms of Service, thirty (30) days following the date that notice of resignation is provided to you.

Miscellaneous. You understand and agree as follows:

Notices. Any notices or other communications required or permitted hereunder shall be sufficiently given if personally delivered, mailed, faxed, or emailed to the notified party to such address as shall be furnished in writing by any party in the manner for giving notices hereunder, and any such notice or communication shall be deemed to have been given as of the date so delivered, mailed, or faxed.

Notices to the Escrow Agent, shall be addressed as follows:

Fossick, LLC

Attn. Legal Department

1942 Broadway

Ste, 314C

Boulder, CO 80302

[email protected]

Entire Agreement. These Terms of Service constitute the entire agreement between you and the Escrow Agent with respect to the Transaction and the Escrow Services, and supersedes any prior understanding or agreement, oral or written, with respect to such matters.

Amendment. These Terms of Service may be amended by the Escrow Agent from time to time by publishing updated Terms of Service on its website.

Severability. In the event of the invalidity of any provision of these Terms of Service, such provision is deemed stricken from these Terms of Service, which will continue in full force and effect as if the offending provision were never a part of these Terms of Service.

Headings; Gender. Captions and headings contained in these Terms of Service are inserted only as a matter of convenience and for reference and in no way define, limit, extend or prescribe the scope of these Terms of Service or the intent of any provision. When interpreting these Terms of Service, the masculine gender includes the feminine and neuter genders, and the singular includes the plural.

Applicable Law. Notwithstanding your current location, you hereby expressly agree that all the terms and provisions of these Terms of Service are construed under and governed by the laws of the State of Colorado.

Attorneys’ Fees. In any Dispute relating to the Transaction or the Escrow Services, including, but not limited to, any Dispute, the prevailing party or parties in such Dispute shall be entitled to recover from the non-prevailing party or parties all reasonable fees, costs and expenses including, without limitation, attorneys‘ fees, costs and expenses, all of which shall be deemed to have accrued on the commencement of such action, proceeding, or arbitration. Attorneys’ fees shall include, without limitation, fees incurred in any post-award or post-judgment motions or proceedings, contempt proceedings, garnishment, levy, and debtor and third-party examinations, discovery, and bankruptcy litigation, and prevailing party shall mean the party that is determined in the arbitration, action or proceeding to have prevailed or who prevails by dismissal, default or otherwise.

Benefits and Burdens. These Terms of Service are binding upon, and inure to the benefit of, you and the Escrow Agent, and their respective successors, assigns, personal representatives, estates, heirs, and legatees.