These Terms and Conditions form an integral part of the Agreement you are entering into with Company. Please ensure you read and understand this Agreement in its entirety, including all of the Terms and Conditions.
Section 1.1. Sale and Purchase of Receivables. Pursuant to the terms of this Agreement, you agree to sell to us, and we agree to purchase from you, all of your right, title and interest in and to certain now existing and future receivables, including those receivables identified as an Invoice (collectively, “Receivables”), and the collected proceeds thereof (“Proceeds”) that have arisen or will arise from the obligations of your customers to pay you for goods and services sold or provided by you, which Receivables may be paid into your transaction account(s), including, but not limited to, one or more business banking or checking accounts, the details of which you have provided to us (individually and collectively, as appropriate, your “Account”). You acknowledge and agree that you have no right to repurchase from us any Receivables sold to us, and we may not force you to repurchase any Receivables, except as required by this Agreement or applicable law. Your obligation to transfer Proceeds to us only extends to the proceeds of Receivables that are actually collected, although you are free to transfer funds to satisfy your obligations under this Agreement in advance of collection.
Section 1.2. Purchase Price and Sale of Additional Receivables.
Section 1.3. True Sale; Our Risk.
Section 1.4. Delivery of Proceeds; Reconciliation.
Section 1.5. Order of Payments. If this Agreement is your only outstanding Receivables sale and purchase agreement or other substantially similar agreement with us (each a “RSPA”), then your transfers to us will be applied first to any outstanding fees, expenses, or costs owed to us, if any, and then to outstanding amounts of Proceeds owed to us. If, in addition to this Agreement, you have one or more outstanding RSPAs (such RSPAs, including this Agreement, referred to as “Outstanding Obligations”), then your transfers to us will be applied (i) first to any outstanding fees, expenses, or costs owed to us pursuant to any Outstanding Obligations, with such transfers applied to fees, expenses, or costs owed to us in order from the fees, expenses, or costs arising from the oldest Outstanding Obligation (based on the date the original agreement governing such Outstanding Obligation was originally entered into with us) to the fees, expenses, or costs arising from the most recent Outstanding Obligation (based on the date the original agreement governing such Outstanding Obligation was originally entered into with us), and (ii) then to any outstanding amounts of Proceeds owed to us, with such transfers applied to amounts of Proceeds owed to us in order from the Proceeds arising from the oldest Outstanding Obligation (based on the date the original agreement governing such Outstanding Obligation was originally entered into with us) to the Proceeds arising from the most recent Outstanding Obligation (based on the date the original agreement governing such Outstanding Obligation was originally entered into with us).
Section 2.1. Accounts. You will provide us, at all times during the term of this Agreement, with access to view the activity in your Accounts and the marketplaces where you do business and to such other accounts (such as with payment processors and collection agents) and sales, shipping, and other data as we deem necessary or appropriate for the purpose of monitoring your generation and collection of Receivables and Proceeds, your transfer to us of such Proceeds, facilitating any requested Reconciliation, or monitoring your compliance with the terms of this Agreement. You agree not to close your Accounts during the term of this Agreement without our prior written consent. You agree to notify us promptly (and to the extent possible, in advance) if, with regard to any Accounts, (i) the details of such Account change or (ii) you open a new Account or a substitute for an Account. Furthermore, with regard to information about any marketplace, payment processor, collection agent, or other service provider that you provided to us (or that we reasonably request from time to time), you agree to notify us promptly (and to the extent possible, in advance) if (i) the details of your account change, (ii) you open a new account, or (iii) you close your account.
Section 2.2. Electronic Debit Authorization. Subject to any limitations required by applicable law, you irrevocably consent and authorize us (which includes for the purposes of this authorization (this “Electronic Debit Authorization”), our agents, service providers, successors and assigns) to initiate on an automatic electronic debit (a “Scheduled Debit”) via electronic fund transfers, automated clearing house transfers or any other debit or payment transfer (each, a “Debit Transaction”), from your Account, as appropriate, at each time and in the amounts determined in accordance with this Agreement. You hereby further authorize us to initiate Debit Transactions for any amounts that come due under the Agreement, including for any Proceeds due to us upon the occurrence of a Total Delivery Event. If we initiate a Debit Transaction from your Account that falls on a Saturday, Sunday or holiday, then the debit in respect of such Debit Transaction may be initiated on the next business day. Any separate transfers that you make prior to the time required to be made under this Agreement will not affect this Electronic Debit Authorization. You authorize us to transfer partial payment of any amounts due under this Agreement, to the extent available, via Debit Transaction. You authorize us to attempt to transfer payment from your Accounts multiple times, to the maximum extent permitted by applicable law, until the amounts due to us are satisfied. We will not be liable or responsible for any fees imposed on you by the provider of any Accounts as the result of any authorized debit, payment to you of the Purchase Price, or any transfers made directly by you under this Agreement.
Section 2.3. Transfer Failure. We may initiate a Debit Transaction at any time, including prior to the time that we open for business on any business day. Consequently, you understand that Earned Monies due to us must be available by the end of the business day prior to the applicable Debit Transaction and maintained in your Account until the Debit Transaction is processed and the debit in respect of such Debit Transaction is completed. If you are aware that sufficient funds will not be available from your Account, unless due to Earned Monies being less than your Actual Proceeds, you will promptly notify us and make an alternate payment arrangement acceptable to us. If a Debit Transaction is rejected or you otherwise fail to ensure delivery of any amounts when due (unless due to Earned Monies being less than your Actual Proceeds), you agree that we may (i) suspend your ability to request RSPAs in the future, (ii) suspend all further automatic debits, in which case you will be responsible for making all further transfers directly and in a timely manner, (iii) to the extent you have Proceeds, initiate daily Scheduled Debits whereby we will debit your Accounts, at any time and from time to time, for Proceeds and any other amounts due to us in addition to your existing obligations hereunder, and (iv) pursue any and all other remedies available to us as set forth in this Agreement or otherwise available under applicable law. You are responsible for any fees resulting from a rejected Debit Transaction and we are not responsible for any overdrafts or rejected transactions that may result from a Debit Transaction. A returned item fee of $25.00 (or such other amount as we disclose to you in advance) will be assessed if, for any reason, (a) a check, draft or similar instrument issued by the Client is not honored or cannot be processed, or (b) a Debit Transaction is returned unpaid or cannot be processed. Client acknowledges and agrees that (a) Client authorizes Company to resubmit returned payments in its discretion, (b) at Company’s option, Company will assess the returned item fee the first time a payment is not honored or paid, even if it is later honored or paid following resubmission, and (c) any check, draft or similar instrument may be collected electronically if returned for insufficient or uncollected funds.
Section 2.4. Terminating or Disputing Authorization; Late, Partial, or Other Transfers; Disputed Amounts.
Section 3.1. Certain Covenants. You agree: (i) your application and all subsequent statements made to us are true, complete and accurate to the best of Client’s knowledge; (ii) not to use the Purchase Price or any other amount paid to you for personal, family, or household purposes; (iii) to promptly and accurately reflect each sale of Receivables (including the Proceeds in respect of such Receivables) to us in your books and records; (iv) not to materially change the nature of the business that you conduct from the type of business originally disclosed to us in connection with this Agreement and, unless we are adequately notified in advance, to conduct your business substantially in accordance with past practices; (v) to take all steps necessary to provide us with access to view (a) the activity in your Accounts, marketplaces where you do business and to such other accounts and sales and shipping data as we deem necessary and appropriate for the purpose of monitoring your generation and collection of Receivables, your handling of Proceeds and your transfer to us of Proceeds, (b) other information about your financial condition and operations as we may request from time to time, including internal accounting platform information and financial forecasts, and (c) all such other information as we may request from time to time; (vi) not to reduce or remove, or cause anyone to reduce or remove, our access, once granted, to your Accounts, marketplaces where you do business and such other accounts and sales and shipping data as we have deemed necessary and appropriate; (vii) with regard to information about any payment processor, collection agent, marketplace or other service provider that you provided to us to determine the amount of your Receivables that we will purchase, to notify us promptly if the details of your account with such payment processor, collection agent, marketplace, or other service provider changes, you open a new account or you close your account; (viii) to ensure that all Proceeds are deposited into your Accounts and to keep your Accounts open until the date upon which all transfers required by this Agreement have been made or this Agreement is otherwise terminated in accordance with the terms hereof, unless otherwise set forth in this Agreement; (ix) to maintain your Account, not take any actions that could result in the closure of your Account, and notify us of any new or substitute Account (including associated account details); (x) to collect Receivables promptly, in compliance with all applicable federal, state and local laws, rules and regulations and consistent with your past collection practices; (xi) to promptly and accurately reflect each sale of Receivables to us in your books and records; (xii) to transfer Proceeds to us (in U.S. dollars) in accordance with the terms of this Agreement; (xiii) not to take any action to discourage the use of your Account and not to permit any event to occur that could have an adverse effect on the use, acceptance or authorization of your Account for the purchase of services and/or products by your customers; (xiv) not to open a new account other than the Accounts into which Proceeds will be deposited and not to take any action to cause Receivables to be settled or transferred to any account other than the Accounts, unless otherwise approved in writing by Company; (xv) not to sell, dispose, convey or otherwise transfer your business or assets, except in the ordinary course of business, without our express prior written consent and the prior payment or assumption of all of your obligations under this Agreement pursuant to documentation reasonably satisfactory to us; (xvi) not to take any intentional action that would substantially impair or reduce your generation or collection of receivables adequate to satisfy your obligations under this Agreement without our prior written consent; (xvii) not to sell any existing or Receivables nor incur any further indebtedness to a third party other than Company without Company’s prior written consent; and (xviii) not to terminate your authorization of scheduled debits from your accounts as provided in this Agreement, stop payment on any debit authorized pursuant to this Agreement, claim that a debit transaction pursuant to this Agreement is unauthorized, or seek a refund, return, chargeback or dispute of a credit card transaction related to a transfer under this Agreement. Collectively, the preceding items (i) through (xvii) are your “Client Contractual Covenants”.
Section 3.2. Condition of Business. You represent and warrant that as of the date of this Agreement (i) you have no present intention to close or cease operating your business, in whole or in part, temporarily or permanently, (ii) you are solvent, including (a) the sum of your debt (including any contingent liabilities) does not exceed the fair value of your assets, (b) the present fair saleable value of your assets (on a going concern basis) is not less than the amount that will be required to pay your probable liabilities (including any contingent liabilities) on their debts as they become absolute and matured in accordance with their terms, (c) your capital is not unreasonably small in relation to your business contemplated as of the date hereof, and (d) you do not intend to incur, or believe that you will incur, debts (including any current obligations and contingent liabilities) beyond your ability to pay such debts as they mature in the ordinary course of business, and you are not contemplating any receivership, bankruptcy, insolvency, assignment for benefit of creditors, or similar proceedings, (iii) during the four (4) months preceding the date hereof, Client has not discussed with or among Client’s management, counsel, or any other advisor or creditor, any potential receivership, bankruptcy, insolvency, assignment for benefit of creditors, or similar proceedings with respect to Client and no such action or proceeding has been filed or is pending, (iv) to the knowledge of Client, no receivership, bankruptcy, insolvency, assignment for benefit of creditors, or similar proceedings have been initiated or filed against the Client, and (v) no eviction or foreclosure is pending or threatened against Client.
Section 3.3. Further Inquiries; Disclosure of Information. Client authorizes Company, its agents and representatives, and any credit reporting agency engaged by Company, to (i) request information about and investigate Client and any references given or any other statements or data obtained from or about Client for the purpose of this Agreement and (ii) pull credit reports, whether in connection with Client’s application for this Agreement or another RSPA at any time thereafter for so long as this Agreement has not been terminated or Client continues to have any obligation (including any contingent obligation) owed to Company.
Section 3.4. Additional Representations, Warranties, and Covenants. Client represents, warrants and covenants the following as of the date hereof and at all times during the term of this Agreement: (i) Client shall comply with each of the Client Contractual Covenants as set forth herein; (ii) all information (financial and other) provided by or on behalf of Client to Company in connection with the execution of or pursuant to this Agreement and during the term of this Agreement is and will be true, accurate and complete in all respects, and Client shall furnish Company such information as Company may request from time to time; (iii) Client acknowledges and agrees that all information (financial and other) provided by or on behalf of Client either as of the date hereof or hereafter has been and may continue to be relied upon by Company in connection with any decision that Company makes to purchase Receivables; (iv) Client is in material compliance with any and all (a) federal, state and local laws and rules and regulations relating to the operation of Client’s business, including the collection of receivables, and (b) rules and regulations of the providers of the Accounts and any online sales channels applicable to Client’s business; (v) Client possesses and is in material compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and lease its properties and to conduct the business in which it is presently engaged; (vi) Client has full power and authority to enter into and perform the obligations under this Agreement, all of which have been duly authorized by all necessary and proper actions; (vii) Client shall maintain insurance in such amounts and against such risks as are consistent with past practice and shall show proof of such insurance upon the request of Company; and (viii) Client does not and shall not conduct Client’s business under any name other than as disclosed to Company and shall not change its place of business without at least fifteen business days’ prior written notice to Company.
Section 3.5. Unencumbered Receivables; Interest in Receivables. Client has good, complete and marketable title to all Receivables and the Proceeds, free and clear of any and all liabilities, liens, claims, charges, restrictions, conditions, options, rights, mortgages, security interests, equities, pledges and encumbrances of any kind or nature whatsoever or any other rights or interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of, Company, in each case, except as may be expressly permitted hereunder or approved in advance by Company in writing. Client acknowledges and agrees that (i) Client has no legal or equitable interest in the Receivables sold pursuant to this Agreement (including the Proceeds thereof) as established under this Agreement, (ii) in the event Client becomes a debtor in a case under Title 11 of the United States Code (or otherwise becomes subject to any receivership, bankruptcy, insolvency, assignment for benefit of creditors, or similar proceedings of any jurisdiction), the Receivables sold pursuant to this Agreement (including the Proceeds thereof) are not property of Client’s estate, to the extent permitted by applicable law, and (iii) Client no longer owns the Receivables sold pursuant to this Agreement (including the Proceeds thereof).
Section 3.6. Business Purpose. Client is a valid business in good standing under the laws of all the jurisdictions in which it is organized and/or operates, and Client is entering into this Agreement solely for business purposes and not as a consumer for personal, family, or household purposes. Client represents that the Purchase Price and any amounts provided hereunder by Company are used solely by Client’s business and all Proceeds relate to sales of goods and or services sold or rendered by Client, and no transaction hereunder is initiated for, used for or otherwise related to personal, family, or household purposes.
Section 3.7. Total Delivery Events. The occurrence of any of the following events shall constitute a “Total Delivery Event”: (i) you fail to make any required transfer of Earned Monies under this Agreement, unless due to Earned Monies being less than your Actual Proceeds; (ii) you break any promise you have made to us, or you fail to comply with or to perform any term, obligation, covenant, or condition under this Agreement or you otherwise revoke this Agreement; (iii) you terminate your Electronic Debit Authorization, stop payment on any Scheduled Debit or otherwise authorized debit pursuant to this Agreement (unless due to Earned Monies subject to such debit transaction being less than your Actual Proceeds) or claim that a Debit Transaction pursuant to this Agreement is unauthorized; (iv) any Account is voluntarily or involuntarily closed without the prior written consent of Company or you block a Debit Transaction in violation of the terms of this Agreement; (v) any representation or statement made or furnished to us by you or on your behalf, in conjunction with your application or thereafter, is false or misleading or any financial information provided by Client is false or misleading, in each case either now or at the time made or furnished; (vi) a material change occurs in your ownership or organizational structure (and you acknowledge that any change in ownership will be deemed material when the Client’s ownership is closely held), including due to death or other removal of a trustor, general or managing partner, managing member, or significant shareholder; (vii) subject to the terms of this Agreement, you voluntarily liquidate or dissolve, or enter into any consolidation merger, partnership, joint venture or other combination without our prior written consent; (viii) you sell any assets except in the ordinary course of your business as now conducted, or sell, lease, license, assign or transfer any substantial part of your business or fixed assets or any property or other assets necessary for the continuance of your business as now conducted, including the selling of any property or other assets accompanied by the leasing back of the same; or (ix) except due to Client being subject to receivership, bankruptcy, insolvency, or assignment for benefit of creditors proceedings, (a) a judgment is entered against you in the aggregate amount of $10,000 or more that is not satisfied within thirty (30) days or stayed pending appeal, or (b) an involuntary lien is attached to any of your assets or property and not satisfied within thirty (30) days or stayed pending appeal. For the avoidance of doubt, Client and Company acknowledge and agree that Client going bankrupt or out of business, by and of itself, does not constitute a breach of Client’s obligations if Client is unable to continue its business and such cause is neither fraudulent, nor related, directly or indirectly, to an attempt to evade Client’s contractual requirements contemplated herein. Client agrees to exercise good faith effort to fulfill Client’s outstanding obligations under this Agreement. Company is purchasing Receivables and Company assumes the risk that Client’s business may fail or be adversely affected by conditions outside the control of Client, provided that Client has not breached this Agreement. You agree to furnish to us, immediately upon becoming aware of the existence of any condition or event which with the lapse of time or failure to give notice would constitute a Total Delivery Event under this Agreement, written notice specifying the nature and period of the existence of such condition or event and any action which you are taking or propose to take with respect thereto.
Section 3.8. Our Rights Upon the Occurrence of a Total Delivery Event. Upon the occurrence of a Total Delivery Event, we reserve the right to demand the immediate transfer to us of any Proceeds up to the Total Amount Sold (less any Earned Monies previously transferred to us), plus any applicable fees, costs, and expenses. Accordingly, you agree that we may, without prior notice, immediately recover the sum of (i) the Total Amount Sold, less (ii) any Earned Monies previously transferred to us, plus (iii) any applicable fees, costs, and expenses. You authorize us to make one or more withdrawals from any Account, to the extent funds are available, until the full net sum due us is recovered. Client will be liable to us for all reasonable costs incurred by us in connection with the Total Delivery Event, including our reasonable attorneys’ fees, expenses and costs incurred in any proceeding pursued against Client to recover the amounts due us under this Agreement. Client expressly agrees to pay us the amounts due via wire transfer (or such other delivery method as reasonably requested by us) or we may withdraw such amounts from Client’s Accounts via Debit Transaction. All rights available to us are cumulative and not exclusive of any other remedies available to us in law or equity. We, in our sole discretion, may hire or pay an affiliate or third party to help collect any amount that you or your customers may owe us. We may, upon notice to you, terminate your role as collection agent for Proceeds from outstanding Receivables sold to us because of a Total Delivery Event, and in such case you agree to cooperate with us or any agent that we designate to collect such Proceeds from your customers by providing timely information and other reasonable assistance. You agree to pay any collection, arbitration, court costs incurred by us or other sums provided or allowed by applicable law. This includes, subject to any limits under applicable law, attorneys’ fees and legal expenses for any receivership, bankruptcy, insolvency, assignment for benefit of creditors, or similar proceedings, civil actions, arbitration proceedings, declaratory actions or other filings or proceedings, and efforts to modify or vacate any automatic stay or injunction, appeals, and any anticipated post-judgment collection services.
Without limiting any rights set forth above, upon the occurrence and continuation of an Total Delivery Event or any default of the terms hereunder by Company, Company may, as purchaser and owner of the Receivables sold hereunder and without further consent from Client: (i) notify any Platform or obligor on any such Receivable that such Receivable has been sold to Company and direct that Proceeds be remitted directly to Company; (b) enforce Company’s ownership and payment rights in the Receivables and Proceeds; and (c) take such commercially reasonable actions as are necessary to prevent Proceeds from being withheld, diverted, delayed, or impaired; and (ii) Client irrevocably authorizes all such third parties to rely upon Company’s notices and instructions as conclusive evidence of Company’s ownership of the Receivables and entitlement to receive the related Proceeds.
Section 3.9. Protective Security Interest. To secure Client’s performance under this Agreement, Client hereby grants to Company a continuing first-priority, perfected security interest in all of your right, title and interest, whether now owned or hereafter acquired, wherever found, in, to and under (i) the Total Amount Sold and all Proceeds, products, proceeds and collections (as those terms are defined in Article 9 of the Uniform Commercial Code (“UCC”)) thereof and (ii) all general intangibles (including payment intangibles) (as defined in the UCC) relating to or arising out of the Total Amount Sold (collectively, the “Collateral”). The security interest granted pursuant to this section is being granted solely for the purpose of ensuring that Client does not take any action to deprive us of our rights under this Agreement. Client and Company agree that, in no event shall the security interest granted hereunder result in anything hereunder being considered a loan or financial accommodation. If a transaction between Company and Client is deemed a loan or financial accommodation notwithstanding the intention of the Parties, then Client grants to Company a continuing first-priority, perfected security interest in all of your right, title and interest, whether now owned or hereafter acquired, in, to and under the Collateral.
Furthermore, out of an abundance of caution and to secure Client’s performance under this Agreement, in the event of Total Delivery Event that is based on any fraudulent act or omission of Client or that is based on or related, directly or indirectly, to an attempt to evade Client’s contractual requirements contemplated herein, Client grants to Company a continuing first-priority, perfected lien security interest, unless otherwise agreed in writing by Company, in the following property of Client, wherever found, that Client now owns or shall acquire: (a) all tangible and intangible personal property of Client, including, all accounts, deposit accounts, chattel paper, documents, equipment, general intangibles, instruments, inventory, investment property (including certificated and uncertificated securities, securities accounts, securities entitlements, commodity contracts and commodity accounts), letter of credit rights, commercial tort claims and as-extracted collateral (as those terms are defined in Article 9 of the UCC in effect from time-to-time in the state where Client is located); (b) all patents, patent applications, trademarks, trade names, service marks, logos, copyrights, and other sources of business identifiers, and all registrations, recordings and applications with the U.S. Patent and Trademark Office (“USPTO”) and U.S. Copyright Office and all renewals, reissues and extensions thereof (collectively “IP”), together with any written agreement granting any right to use any IP; and (c) all accessions, attachments, accessories, parts, supplies and replacements, products, proceeds and collections with respect to the items described in (a) and (b) above, as those terms are defined in Article 9 of the UCC and all records and data relating thereto.
Section 3.10. Financing Statements. Client understands and agrees that Company may at any time file one or more UCC-1 financing statements, lien entry form or other document to evidence the sale of Client’s Receivables or to perfect, amend or continue any interest granted herein. Client agrees to cooperate with Company as may be necessary to accomplish said filing and authorizes Company to sign Client’s name to effect the filing or continuation of any such filings. Any UCC-1 financing statements that are filed may state that the sale of Receivables by Client to Company is intended as a true sale and not an assignment for security.
Section 3.11. Platform Access. Client authorizes Company to access, connect to, and obtain information from any e-commerce platforms, marketplaces, payment processors, merchant accounts, and related third-party services through which Receivables are generated or paid (including, without limitation, platforms such as Shopify, Amazon, Stripe, or similar services) or through which Client sells its goods or services (“Platforms”), whether directly or via third-party authentication tools (including OAuth or similar technologies), solely for the limited purposes of verifying Receivables, reconciling payments, and tracking Proceeds. Client shall cooperate with Company and shall provide Company with all information necessary for Company to access, connect to, and obtain information from such Platforms, and shall ensure Company has access to the Platforms for the term of this Agreement.
Section 4.1. ARBITRATION (AGREEMENT TO ARBITRATE CLAIMS); SIGNIFICANCE OF ARBITRATION; LIMITATIONS AND RESTRICTIONS.
Section 4.2. Jury Trial Waiver. THE PARTIES WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR THE ENFORCEMENT HEREOF, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. THE PARTIES ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
Section 4.3. Class Action Waiver. THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW AS AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR A COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES HEREBY AGREE THAT: (1) THE PREVAILING PARTY WILL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT) AND (2) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
Section 4.4. No Waiver by Company. No delay on the part of Company to exercise, and no delay in exercising, any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right under this Agreement preclude any other or further exercise of any other right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
SECTION 5 – Additional Terms
Section 5.1. Remedies. In the event that (i) any representation or warranty of Client contained in this Agreement is not true, accurate and complete in any respect, (ii) a breach of any of the covenants or other terms contained in this Agreement occurs, including the Client Contractual Covenants, or (iii) a Total Delivery Event occurs, Company shall be entitled to all remedies set forth in this Agreement or otherwise available under applicable law.
Section 5.2. Confidentiality. Client understands and agrees that the terms and conditions of the products and services offered by Company, including this Agreement, any disputes, claims, or proceedings related hereto (including with you pursuant to the arbitration provisions of this Agreement), and any other Company documentation (collectively, “Confidential Information”) are proprietary and confidential information of Company. Accordingly, unless disclosure is required by applicable law or an order issued by a court of competent jurisdiction, Client shall not disclose Confidential Information to any person other than an attorney, accountant, financial advisor or employee of Client who needs to know such information for the purpose of advising Client (“Advisor”), provided such Advisor uses such information solely for the purpose of advising Client and first agrees in writing to be bound by the terms of this section. Client shall be liable for any breach of these confidentiality obligations by its Advisors. The foregoing covenants of Client shall exist for the duration of the relationship of the Parties and, with respect to all Confidential Information, that comprises a trade secret (under the laws of the State of Delaware) for so long as such information continues to constitute a trade secret and, otherwise, for five years after termination of the relationship between the Parties. Client authorizes Company to use its, his or her name in a listing of clients and in advertising and marketing materials. Client’s disclosure of this Agreement or its subject matter (including, the Company’s purchase of the Client’s Receivables ) shall remain subject to the confidentiality obligations set forth herein.
Section 5.3. Transfer and Assignment. Without prior notice or approval by you, we reserve the right to sell or transfer all or any portion of our interest in this Agreement to another entity or person. Your rights and obligations under this Agreement belong solely to you and may not be transferred or assigned by you, without our prior written consent (to be provided in our sole discretion). Your obligations, however, are nonetheless binding upon you and your heirs, legal representatives, successors and assigns.
Section 5.4. Modifications; Amendments; Construction. This Agreement shall be binding upon and inure to the benefit of Client, Company and their respective successors and permitted assigns. No modification, amendment or waiver of any provision of this Agreement shall be effective unless the same shall be in writing and signed by the Parties. Company strongly recommends to Client that it retain legal counsel to advise Client with respect to this Agreement before agreeing to it, and Client acknowledges and agrees that it has had the opportunity to consult with its legal counsel and other tax/professional advisors with respect to this Agreement. This Agreement is the product of negotiation by the Parties and should not be construed more strictly with regard to one Party than with regard to the other. The headings of the sections and subsections herein are inserted for convenience only and under no circumstances shall they affect in any way the meaning or interpretation of this Agreement. For purposes of this Agreement, “including” shall mean “including, without limitation.” Words used in this Agreement in the singular, where the context so permits, shall be deemed to include the plural and vice versa. The definitions of words in the singular in this Agreement shall apply to such words when used in the plural where the context so permits and vice versa.
Section 5.5. Notices. Except as otherwise provided in this Agreement, any notice provided under this Agreement must be in writing but may be provided electronically. Notices will be deemed given when delivered in person or sent by registered mail, certified mail, nationally recognized overnight courier, or by electronic mail. Notice to you will be sent to your last known email address in our records. Notice to any of you will be deemed notice to all of you. Notice to us may be sent to SpringCash LLC, 106 W 56th St, Floor 21, New York, NY 10019. You agree to notify us immediately if you change your name (provided that such name change shall remain subject to the requirements set forth elsewhere herein), your postal or electronic mail address or other contact information, if there are any errors in the information regarding transactions on your account or information that you provide to us, or if any of you dies, is declared incompetent or is the subject of any receivership, bankruptcy, insolvency, assignment for benefit of creditors, or similar proceedings. You agree that a notice of incompetence is not effective unless issued by a court having competent jurisdiction and we receive notice and instruction from such court. Notwithstanding the above, we may, at our option, accept other evidence of incompetence acceptable to us. You agree to indemnify and hold us harmless from and against any and all claims relating to acceptance or non-acceptance of proof of incompetence in any transaction. This indemnity will survive termination of this Agreement.
Section 5.7. Indemnification. Client will indemnify and hold Company (and Company’s employees, directors, agents, affiliates and representatives) from and against any cost, loss or liability including interest, penalties, reasonable attorneys’ fees and expenses resulting from Client’s misrepresentation or breach of warranty, or breach of any covenant or other provision of this Agreement. Client shall indemnify and hold harmless its Platform(s) and each of their respective officers, directors and shareholders against all losses, damages, claims, liabilities, and expenses (including reasonable attorney and expert fees) incurred by any such Platform resulting from (a) claims asserted by Company for monies owed to Company from Client and/or (b) actions taken by such Platform in reliance upon information or instructions provided by Company.
Section 5.7. Governing Law. With the exception of the arbitration provisions herein (which are to be governed exclusively by the FAA), this Agreement, any transactions contemplated hereby, the construction of the terms of this Agreement and all transactions, and the interpretation, performance and enforcement of the rights and duties of Client and Company hereunder, will be governed by and construed in accordance with the laws of Delaware, without regards to the jurisdiction’s conflicts of law principles. The Parties agree that the laws of Delaware govern the entire relationship between and among the Parties (with the exception of the arbitration provisions to be governed exclusively by the FAA), including all issues or claims arising out of, relating to, in connection with or incident to this Agreement and any transaction it contemplates, whether such claims are based in tort, contract, or arise under statute or in equity. The Parties acknowledge and agree that this Agreement is made and performed in the state of Delaware. Client hereby submits to the jurisdiction of any Delaware state or federal court sitting in such state, at Company’s choice. Client hereby waives any claim that an action is brought in an inconvenient forum, that the venue of the action is improper, or that this Agreement or the transactions of which this Agreement is a part may not be enforced in or by any of the above-named courts.
Section 5.8. Term and Survival. This Agreement shall continue in full force and effect until all obligations hereunder have been satisfied in full; provided, however, that any section that, by its terms suggests survival beyond termination hereof, shall so survive until the natural expiration thereof.
Section 5.9. Entire Agreement; Severability. This Agreement contains the entire agreement and understanding among Client and Company and supersedes all prior agreements and understandings, whether oral or in writing, relating to the subject matter hereof, unless otherwise specifically reaffirmed or restated herein. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.
Section 5.10. Telephone Monitoring and Recording. To ensure that you receive quality service and for training purposes, you agree that we may select phone calls for monitoring and/or recording. You acknowledge that we and any servicer may do so and agree in advance to any such monitoring or recording of telephone calls.
Section 5.11. Communicating With You; Consent to Contact by Electronic and Other Means. For purposes of this section, “you” means Client and any agent or representative of Client, collectively and individually, for purposes of communications between you and Company regarding this Agreement and related commercial transactions. You agree that we may contact you as provided in this section. We may contact you for any lawful reason, including for the collection of amounts owed to us and for the offering of products or services to Client in compliance with our privacy policy in effect from time to time. No such contact will be deemed unsolicited. You specifically agree that we may (i) contact you at any address (including email) or telephone number (including wireless cellular telephone or ported landline telephone number) as you may provide to us from time to time, even if you asked to have your number added to any state or federal do-not-call registry; (ii) use any means of communication, including, but not limited to, postal mail, electronic mail, telephone or other technology, to reach you; (iii) use automatic dialing and announcing devices which may play recorded messages; and (iv) send text messages to your telephone. You may withdraw this express written consent at any time by contacting us at SpringCash LLC, 106 W 56th St, Floor 21, New York, NY 10019and telling us specifically what address or telephone number not to use.