These Terms and Conditions govern your access to our LoadPay product (the “Servicer”), related information, and any related services provided to you by us through the LoadPay.com site (the “Site”). We are not a bank, a money transmitter or a money services business (“MSB”) and we do not offer banking, money transmission or MSB services.
CAREFULLY READ THESE TERMS AND CONDITIONS. These Terms and Conditions constitute an agreement between you and us. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THESE TERMS AND CONDITIONS CAREFULLY, UNDERSTAND EACH OF THEM AND AGREE TO BE BOUND BY THEM By selecting the “I Accept” button at the bottom of this page. THE TERMS THAT ARE APPLICABLE TO YOU MAY DIFFER BASED ON THE STATE IN WHICH YOUR PRINCIPAL PLACE OF BUSINESS IS LOCATED. By accepting these Terms and Conditions once, you agree that you will be bound by them each and every time you use our website or the Service. [YOU ACKNOWLEDGE AND AGREE THAT THIS IS NOT A LOAN CONTRACT.] Please note that these Terms and Conditions contain waivers by you of certain rights you have against us, our affiliates, and our or their directors and representatives. If you do not agree to these Terms and Conditions, you may not access or otherwise use our website or the Service.
BROKER SERVICING AGREEMENT
This Agreement (as amended and in effect from time to time, this “Agreement”) between LoadPay LLC (“Servicer”) and the entity identified as the “Company” in the Registration Form (as defined below) (“Company”). RECITALS
- Company, in the normal course of its business, purchases goods and/or services from certain third-party vendors which extend trade credit to the Company;
- The extension of such trade credit to the Company creates accounts payable owing by the Company to such vendors.
- Subject to the terms and conditions set forth herein, Servicer desires to service certain accounts payable owing by the Company to certain of such vendors
- This Agreement has been entered into and will be performed in the Chosen State.
, in consideration of the premises, and intending to be legally bound hereby, the Parties agree as follows:
- Definitions. The following terms shall have the meanings set forth below. Any capitalized terms not herein defined shall have the meaning proscribed in the Uniform Commercial Code.
- “Applicable Vendor” – With respect to each Specified Payable, the Vendor to which such Specified Payable is owed.
- “Approved Maximum Amount” – Initially the sum identified and provided to the Company by Servicer following Servicer’s acceptance of the Registration Form, which amount may from time to time be increased or decreased as provided in Section 1.3.
- “Business Day”- Any day other than a Saturday or a Sunday or Bank Holidays on which banks are open for business in the Chosen State.
- “Chosen State”: – Idaho.
- “Collateral”- All Company’s now owned and hereafter acquired Accounts, Chattel Paper, Inventory, Equipment, Instruments, Investment Property, Documents, Letter of Credit Rights, Commercial Tort Claims, and General Intangibles.
- “Due Date” – With respect to a Specified Payable, the date on which the Company is obligated by contract or law to pay to the Applicable Vendor the Invoice Amount relating to the Specified Payable. If the date is not a Business Day, the Due Date shall be the immediately preceding Business Day.
- “Eligible Payable” – A Payable owing by the Company to an Eligible Vendor (a) which is payable in U.S. dollars, and (b) which is payable to an office in the United States or its territories and possessions.
- “Eligible Vendor” – A Vendor as to which, at the time of determination, there exists a currently effective Vendor Agreement.
- “Insolvency Event” – With respect to any Person, either (a) a decree or order for relief of such Person shall be entered by a court having jurisdiction in the premises for the winding up or liquidation of its affairs, or a receiver, liquidator, assignee, custodian, trustee, (or other similar official) shall be appointed for such Person or for any substantial part of its property for the winding up or liquidation of its affairs, and the winding up or liquidation of its affairs shall be ordered by such a court, or an involuntary case under other similar law shall be commenced against such Person, or (b) such Person shall commence a voluntary case in a court having jurisdiction in the premises under applicable bankruptcy, insolvency or similar law, or shall consent to the entry of an order for relief in an involuntary case under any such law or to the appointment of or taking possession by a receiver, liquidator, assignee, custodian trustee, (or other similar official) of such Person or of any substantial part of its property under any such law, or such Person shall make a general assignment of its assets for the benefit of creditors.
- “Invoice” – An invoice or payment request issued by a Vendor with respect to Supplies furnished to the Company. The term includes a purchase order issued by the Company to such Vendor for such Supplies if there is no invoice or payment request from such Vendor or if the terms of such purchase order from the Company generally control over the terms of any invoice or payment request issued by such Vendor.
- “Invoice Amount” – With respect to each Specified Payable, the amount of the Invoice relating thereto to the extent that the Company has, following its own internal procedures, approved the Invoice for payment. The term does not include the amount of sales, use or other taxes, shipping charges, customs or import duties or like incidental charges to the extent that payment of such taxes, charges or duties imposes collection or reporting requirements or duties on the payor.
- “Invoice Approval Notice” – A written notification, in form and content satisfactory to Servicer, made by the Company to Servicer pursuant to Section 2.1.
- “Notification Date” – The date on which Company delivers an Invoice Approval Notice to Servicer.
- “Obligations” – All present and future obligations owing by Company to Servicer whether arising hereunder or otherwise, and whether arising before, during or after the commencement of any bankruptcy case in which Company is a debtor.
- “Parties” – Servicer and Company.
- “Payable” – Any account payable owing by the Company to a Vendor arising from the purchase by the Company of Supplies.
- “Payor” – An Account Debtor or other obligor on an Account, or entity making payment thereon for the account of such party.
- “Person” – An individual or a corporation, partnership, limited liability company, joint venture, or other legal entity, including a government or governmental unit.
- “Registration Form” – The form required by Servicer to be completed by the Company and submitted to Servicer together with the Company’s acceptance of the terms and conditions of this Agreement, and accepted in its sole discretion by Servicer on the Site in order for the Company to have further access to the Site.
- “Required Information” – With respect to each Invoice for which there is an Invoice Amount, (a) the name and address of the Vendor, (b) any account or invoice number or other information necessary to identify the Invoice, (c) the Invoice Amount and (d) the Due Date.
- “Servicer Due Date” – The earlier of (i) one Business Day before the Due Date or (ii) no more than 45 days from the date set forth in the applicable Invoice Approval Notice.
- “Site” – The website operated by Servicer in connection with the services provided herein and made accessible to the Company pursuant to the terms and conditions of this Agreement.
- “Specified Payable” – A Payable as to which Servicer has agreed to pay the Invoice Amount relating to such Payable pursuant to the terms of this Agreement.
- “Supplies” – Goods or services purchased by the Company. The term also includes, in the case of the purchase of services, the primary services as well as all supplemental goods or other supplies provided with or as part of the services.
- “U.S. dollars or ‘$’” – United States dollars.
- “Vendor” – A Person that has sold Supplies to the Company.
- “Vendor Agreement” – An agreement between Servicer and a Vendor pursuant to which (a) the Vendor acknowledges that Servicer may pay to the Vendor a Payable owed to the Vendor by the Company, and (b) agrees to the terms on which the Vendor will receive payment for the Payable from Servicer, including any early payment discount.
- Servicing of payables.
- This Agreement shall become effective upon Servicer’s notice to the Company of Servicer’s acceptance of the Registration Form and Servicer advising the Company of the Approved Maximum Amount. Servicer reserves the right to decline to accept the Registration Form for any reason in its sole discretion.
- Subject to the terms and conditions of this Agreement, Servicer may pay the Eligible Payables from time to time owing by the Company to Eligible Vendors; provided that, after giving effect to any such agreement to pay, the aggregate sum equal to the Invoice Amounts applicable to all of the then Specified Payables for which Servicer has at such time made payment to the Vendors and not received payment from the Company pursuant to Section 3, shall not exceed the Approved Maximum Amount.
- The Approved Maximum Amount may from time to time be increased or decreased in Servicer’s sole discretion.
Invoice Approval Notice.
- The Company shall from time to time notify Servicer using the Site of each Invoice relating to an Eligible Payable for which there is an Invoice Amount, together with all Required Information relating to the Invoice, promptly upon the Invoice Amount being determined by the Company. The notification, once made, shall be irrevocable and binding upon the Company, subject only to Section 4.1.
- Each Invoice Approval Notice shall constitute a representation and warranty by the Company that (i) the Invoice Approval Notice contains true and accurate information as to the Required Information relating to the Payable referred to therein, (ii) the Payable is an Eligible Payable, and (iii) the Payable is owed by the Company to the Vendor.
- Subject to the terms and conditions of this Agreement, Servicer is authorized to act on any Invoice Approval Notice given by facsimile, email, site, or other instructions (including but not limited to any instructions given in any software used by Company), by anyone purporting to be an officer, employee, or representative of Company.
Payment Obligations of Servicer.
- Each Eligible Payable for which Servicer has received an Invoice Approval Notice shall constitute a Specified Payable without any further action of the Company or Servicer. The Eligible Payable shall continue to be a Specified Payable except as provided in Section 4.
- In reliance upon the representations and warranties of the Company contained in Section 2.2 and the Company’s other representations, warranties and undertakings herein, Servicer agrees that, by each Eligible Payable becoming a Specified Payable, Servicer will, subject to the terms and conditions of this Agreement including the limitations contained herein, pay to the Applicable Vendor the Invoice Amount relating to the Specified Payable on or before the Due Date applicable to the Specified Payable. Servicer may satisfy its obligation to the Company to pay the Invoice Amount to the Applicable Vendor in any manner that discharges the Company’s obligation to pay the Invoice Amount.
Relief from Payment Obligation.
- If the Company notifies Servicer that the Company wishes to rescind an Invoice Approval Notice relating to a Specified Payable, Servicer will use reasonable efforts to comply with the request to the extent that Servicer has not already paid or committed to pay the Invoice Amount relating thereto or any portion thereof to the Applicable Vendor. If Servicer complies with the rescission request, the Payable will cease to be a Specified Payable to the extent that the Invoice Amount relating thereto has not been paid, or committed by Servicer to be paid, to the Applicable Vendor.
- If all or any portion of a Specified Payable ceases to be a Specified Payable, Servicer will be relieved of its obligation to pay to the Applicable Vendor the Invoice Amount of the Specified Payable or, as the case may be, the unpaid portion thereof.
Notification of Payors.
- Company irrevocably authorizes Servicer at Company’s expense, to at any time notify any Payor obligated with respect to any of Company’s Accounts that the underlying Account has been assigned to Servicer by Company and that payment thereof is to be made to the order of and directly and solely to Servicer.
- PAYMENT BY THE COMPANY.
Company’s Obligation to Pay the Invoice Amount to Servicer.
- Subject to Section 1.2, in consideration of Servicer’s payment of the Invoice Amount relating to each Specified Payable on or before the Due Date, the Company absolutely, unconditionally and irrevocably promises to pay the Invoice Amount to Servicer on or before the Servicer Due Date applicable to the Specified Payable.
- The Company shall not be required to make payment to Servicer of the Invoice Amount to the extent that Servicer has not paid the Invoice Amount to the Applicable Vendor. The entry of data on the Site indicating payment shall constitute rebuttable presumptive evidence that the payment has been made and that the Company is obligated to pay to Servicer the Invoice Amount without the necessity of the Company executing any promissory note or other writing.
Unconditional Obligation. THE COMPANY ACKNOWLEDGES AND AGREES THAT ITS OBLIGATION TO PAY TO SERVICER THE INVOICE AMOUNT WITH RESPECT TO EACH SPECIFIED PAYABLE ON THE DUE DATE APPLICABLE THERETO IS ABSOLUTE, UNCONDITIONAL, SUBJECT TO Section 1.2, AND IRREVOCABLE AND SHALL NOT BE AFFECTED, LIMITED OR IMPAIRED BY ANY EVENT, OCCURRENCE OR CIRCUMSTANCE WHATSOEVER, INCLUDING, WITHOUT LIMITATION:
- ANY DAMAGE TO OR LOSS, DESTRUCTION, OR UNFITNESS OF, OR DEFECT IN ANY SUPPLIES;
- THE INABILITY OF THE COMPANY TO USE ANY SUPPLIES FOR ANY REASON WHATSOEVER;
- ANY DEFENSE, CLAIM, OFFSET, COUNTERCLAIM, SET-OFF, RECOUPMENT OR ABATEMENT WHICH THE COMPANY MAY HAVE AGAINST THE APPLICABLE VENDOR OR ANY OTHER PERSON;
- ANY OTHER EVENT, OCCURRENCE OR CIRCUMSTANCE WHATSOEVER WHICH MIGHT LIMIT, REDUCE OR EXCUSE THE OBLIGATION OF THE COMPANY OR SERVICER TO THE APPLICABLE VENDOR OR ANY OTHER PERSON, INCLUDING, WITHOUT LIMITATION;
- THE CIRCUMSTANCE THAT ANY INVOICE SHALL HAVE BEEN PAID BY THE COMPANY OR ANY OTHER PERSON;
- THAT ANY INVOICE MAY BE FALSE, FRAUDULENT OR OTHERWISE INCORRECT; OR
- THAT THE COMPANY IS FOR ANY REASON NOT OBLIGATED (IN WHOLE OR IN PART) UNDER OR IN RESPECT OF THE SPECIFIED PAYABLE;
THE COMPANY AGREES THAT NONE OF THE FOREGOING SHALL (A) GIVE RISE TO ANY DEFENSE, COUNTERCLAIM, OR RIGHT OF SET-OFF AGAINST SERVICER, (B) PERMIT ANY RECOUPMENT OR ABATEMENT OF, OR REDUCTION IN THE INVOICE AMOUNT FOR PURPOSES OF THIS Section 3, OR (C) RELIEVE THE COMPANY, IN WHOLE OR IN PART, OF THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, THE COMPANY’S OBLIGATION TO PAY TO SERVICER AN AMOUNT EQUAL TO THE FULL INVOICE AMOUNT ON THE DUE DATE RELATING THERETO. The Company shall, notwithstanding any such claim, continue to pay to Servicer, as and when due, the Invoice Amount relating to the Specified Payable, and any claim that the Company may have which arises from a defect in or deficiency of any Supplies shall be brought solely against the Applicable Vendor and may be reflected as a debit or offset in computing the Invoice Amount on a later issued Invoice from or to the Applicable Vendor.
ACH Reversals- Error Resolution
Payments. Each payment made by the Company hereunder shall be made in immediately available funds in U.S. dollars on the due date of such payment. Payments to be made to Servicer shall be made to a deposit account as Servicer may from time to time specify in writing to the Company. Payments cannot be scheduled less than 14 days out through the LoadPay system. The Company cannot specify how the Servicer will receive payments; the Servicer will specify that themselves through LoadPay. Any payment to be made by the Company to Servicer on any Business Day shall be deemed made on such Business Day if such payment is received on or before (a) Same Day ACH by12:00 p.m. EST on such Business Day, (b) Next Day ACH by 8 p.m. EST; otherwise, such payment shall be deemed to have been made on the succeeding Business Day. If a payment is due on any day which is not a Business Day, it shall be made on the next succeeding Business Day unless otherwise specified herein.
LoadPay follows and adheres to the National Automated Clearing House Association (NACHA) rules and regulations. In the event an ACH reversal may be required, there are only three situations or conditions whereby a reversal is allowable:
Incorrect dollar amount
Wrong account number
In the event that any of the above situations occur, the Broker Company will notify LoadPay Customer Support within 3 business days of the processed transaction. LoadPay CANNOT
initiate a return any later than 5 business days after the original transaction was processed per NACHA regulations. Therefore, if a Broker makes an error and does not notify LoadPay within above stated timeframe, any corrections will have to be made by the Broker outside of the LoadPay system.
Payment options available to you are as follows:
- Single Payment Entry (manual data entry, one payment at a time)
- Payment Upload (bulk payment file upload, using file template)
- Partner Integration (automatic processing, using integration with third party)
ACH Authorization. In order to satisfy any of the Obligations, including but not limited to Company’s obligation to pay the Invoice Amount to Servicer on or before the Servicer Due Date applicable to each Specified Payable pursuant to Section 1.1, Company authorizes Servicer to initiate electronic debit or credit entries through the ACH system to any deposit account maintained by Company.
Late Charges. If any amount payable under this Section 3 relating to any Specified Payable is not paid when due, the Company agrees to pay to Servicer on demand a daily late charge equal to such amount multiplied by the Late Charge Percentage until such amount is paid, whether before or after judgment.
- Security Interest
- To secure the performance of the Obligations, Company grants to the Servicer a security interest in the Collateral, and all proceeds and products thereof.
- The Site.
- Servicer shall maintain the Site in accordance with this Agreement. The Company having completed the Registration Form and submitted it to Servicer on the Site and Servicer having accepted the Registration Form and provided the Company with notification of the Approved Maximum Amount, the Company may from time to time further access the Site to (a) give Invoice Approval Notices, (b) review, monitor and ascertain (i) whether a Vendor Agreement is then effective with any Applicable Vendor, (ii) whether, under the terms of the Vendor Agreement between Servicer and any Applicable Vendor, any Specified Payable has been rejected by the Applicable Vendor for payment by Servicer, and (iii) whether payment of the Invoice Amount relating to a Specified Payable at the time has been made, and (d) make other communications under this Agreement to the extent provided on the Site.
- REPRESENTATIONS AND WARRANTIES.
Company. The Company represents and warrants, at the time of the submission of each Invoice Approval Notice, as follows:
- each Specified Payable is (i) a valid, bona fide Payable, representing an undisputed obligation incurred by the Company for Supplies purchased by the Company and delivered to the Company and (ii) subject to no claims, defenses or offsets other than debits and offsets already reflected in the Invoice Amount relating thereto;
- no agreement under which any deduction, discount, or offset (other than any discount stated on the Invoice relating thereto or other debits and offsets already reflected in the Invoice Amount) that may be claimed has been made with the Applicable Vendor;
- no agreement under which any goods related to such Payable may be returned has been made with the Applicable Vendor (but any representation or warranty contained in the foregoing Sections 1.1, 6.1.2 or 6.1.3 shall not be considered as breached as to any Specified Payable if Servicer receives payment of the Invoice Amount for such Specified Payable pursuant to Section 3 as and when due);
- the Company is the lawful obligor of such Payable and has the right to permit the payment of such Payable by Servicer upon the terms contained herein;
- the Payable has been incurred by the Company in accordance with applicable law,
- the Company is an organization validly existing and, if applicable to such an organization, in good standing in the jurisdiction of its organization;
- the Company has the full corporate power and authority to enter into this Agreement;
- this Agreement has been duly authorized and executed by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium or insolvency laws and principles of equity; and
- each notice, report or other communication by the Company to Servicer hereunder will be true, correct and complete in all material respects.
Servicer. Servicer represents and warrants that:
- it is a limited liability company organized and validly existing under the laws of the State of Idaho;
- it has the full power and authority to enter into this Agreement; and
- this Agreement has been duly authorized and executed by Servicer and constitutes the legal, valid and binding obligation of Servicer, enforceable against Servicer in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, moratorium or insolvency laws and principles of equity.
- The Company covenants with Servicer as follows:
- The Company shall assist Servicer in identifying Vendors and communicating with Vendors, pursuant to mailings and other communications in form and substance satisfactory to Servicer, as to Servicer’s willingness to pay Specified Payables, after taking into account any early payment discounts to be agreed to by the Vendor in a Vendor Agreement.
- If requested by Servicer or a permitted assignee of Servicer, the Company shall, promptly and in any event within 5 Business Days following such request, provide to Servicer or the assignee from time to time further details of the Specified Payables and any other information concerning the assets, liabilities, business or prospects of the Company as Servicer or the assignee shall reasonably request.
- The Company will not at any time cause or permit any term of payment to be modified for any Payable that, at such time, has become a Specified Payable.
- So long as this Agreement is in effect, the Company will not enter into with any Person other than Servicer any arrangement for the payment of the Company’s Payables similar to the arrangements contemplated by this Agreement or otherwise relating to the servicing of the Company’s payment of its Payables. However, the foregoing covenant shall not prevent the Company from obtaining early payment discounts on Payables from Vendors and from paying Vendors the discounted Payables from the Company’s own funds or from funds borrowed by the Company for working capital.
- CONDITIONS PRECEDENT.
Conditions to Initial Payment. The obligation of Servicer to make any payment to an Applicable Vendor under this Agreement relating to the initial Invoice Approval Notice is subject to the fulfillment of the following conditions precedent:
- This Agreement shall have been executed and delivered by the Parties hereto.
- Servicer shall have received officer’s certificates, legal opinions and such other evidences of corporate authority and other matters relating to the due authorization, execution delivery and binding nature of this Agreement against the Company as Servicer shall have reasonably requested.
Conditions to all Payments. Subject to Section 3, the obligation of Servicer to make any payment relating to a Specified Payable to an Applicable Vendor under this Agreement, including any payment relating to the initial Invoice Approval Notice, is subject to the fulfillment of the following conditions precedent:
- The representations and warranties of the Company contained herein shall be true and correct as of the date made or deemed to have been made, assuming, for purposes of Sections 1.1, 6.1.2 and 6.1.3, compliance with Section 3 for payment in the event that the time for payment has not then occurred.
- The Company shall have complied with all of its agreements and covenants contained herein.
- The Applicable Vendor shall not, in accordance with the Vendor Agreement between Servicer and the Applicable Vendor, have rejected the Specified Payable for payment by Servicer.
- The Company shall not have requested that it rescind the Invoice Approval Notice relating to the Specified Payable.
- Servicer shall have determined in its sole discretion that no material adverse changes or disruptions in the financial or capital markets have occurred which could impair issuance by Servicer or by any other lender or investor from which Servicer is obtaining funding, of commercial paper or other indebtedness in connection with the funding of any Payable contemplated hereunder.
- This Agreement shall not have terminated pursuant to Section 1 or Section 10.2.
- EXPENSES AND INDEMNIFICATION.
- The Company agrees to pay to Servicer the following costs, fees and expenses:
- any taxes (including any interest and penalties in respect thereto) payable by Servicer on or with respect to the transactions contemplated by this Agreement, exclusive of any taxes on the overall net income of Servicer, and
- all reasonable out-of-pocket expenses (including without limitation reasonable attorneys’ fees and costs, and reasonable consulting, accounting, broker and similar professional fees and charges) incurred by Servicer in connection with (i) the enforcement of or preservation of rights under this Agreement, or (ii) any litigation, proceeding or dispute whether arising hereunder or otherwise, in any way related to Servicer’s relationship with the Company.
- The covenants contained in this Section 1 shall survive termination of this Agreement.
- The Company agrees to indemnify Servicer and to hold Servicer harmless from and against any loss, cost or expense incurred or sustained by Servicer as a consequence of:
- any purported revocation (or revocation to which Servicer consents) of an Invoice Approval Notice,
- any inaccuracy or incompleteness of any representation or warranty made by the Company herein or in connection with any Invoice Approval Notice,
- any failure of the Company to satisfy any condition set forth in Section 8 for payment in relation to any Payable on the Notification Date applicable thereto, or
- any failure by the Company to comply with its payment obligations in accordance with Section 3.
Such indemnification includes indemnification for any such loss, cost or expense arising from interest, fees or other amounts payable by Servicer to lenders or other third parties, whether or not recourse against Servicer therefor is limited to payment out of a particular fund or proceeds of a particular source.
- The Company further agrees to indemnify and hold harmless Servicer from and against any and all third party claims, actions and suits whether groundless or otherwise, and from and against any and all liabilities, losses, damages and expenses of every nature and character arising out of this Agreement or the transactions contemplated hereby. Such indemnification includes any claims of any bankruptcy trustee, receiver or creditors of any Vendor in the event that this Agreement is construed as an agreement by Servicer to assume accounts, chattel paper or other assets of the Vendor. In litigation, or the preparation therefor, Servicer shall be entitled to select its own counsel, and, in addition to the foregoing indemnity, the Company agrees to pay promptly the reasonable fees and expenses of such counsel.
- The covenants contained in this Section 2 shall survive the termination of this Agreement.
Term. This Agreement shall be effective on the date agreed to by both Parties, and shall continue in effect until terminated as provided in this Section.
- Servicer may at any time terminate this Agreement, with or without cause.
Effect of Termination.
- Upon termination of this Agreement, Servicer shall be relieved of any obligation with respect to any Payable that is not a Specified Payable on the date of termination. In addition, if this Agreement is terminated by Servicer pursuant to Section 2.1, all obligations of the Company pursuant to Section 3 shall become immediately due and payable.
- Except as provided in Section 3.1, the respective rights and obligations of the Parties arising out of the events occurring prior to the date of termination shall not be affected by such termination, and all terms, provisions and conditions of this Agreement shall continue in full force and effect until the respective obligations of the Parties hereto have been paid in full. Without limiting the generality of the foregoing, (i) the Company shall remain obligated pursuant to Section 3 to pay to Servicer the Invoice Amount of each Specified Payable that became a Specified Payable on or prior to the date of termination, and (ii) each Party shall remain obligated pursuant to Section 3, Section 9, Section 10.2, Section 11 and Section 12.
- The provisions of this Section 11 shall survive the termination of this Agreement.
Amendments, Waivers, Integration.
- Servicer may modify this Agreement from time to time. Upon any modification to this Agreement, Servicer will provide the Company with notice of the modification and will post the modified Agreement on the Site, together with a description of the modifications made to this Agreement. The modified Agreement will be effective upon the Company selecting the “I Accept” button at the bottom of the notice of such modifications. Should the Company object to any modification, the Company’s sole recourse is to reject the modified Agreement and to terminate its use of the Site. This Agreement may not otherwise be modified, except in writing signed by both parties.
- No delay or failure on the part of either Party in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy. No waiver whatsoever shall be valid unless in writing, signed by the Party to be charged, and then only to the extent therein set forth.
Notices. All notices shall be effective upon: (a) the sending of an email to one of the email addresses below, (b) the sending of a communication on the Site, as permitted on the Site, or (c) delivery to a recognized overnight delivery service of a properly addressed notice, delivery prepaid, with instructions to make delivery on the next business day. For purposes hereof, the addresses of the Parties are as set forth below or as may otherwise be posted on the Site by a Party or specified from time to time in a writing sent by one Party to the other in accordance with the provisions hereof:
- This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns; provided that, except as otherwise provided in this Section 3, none of the Parties hereto may assign its rights or obligations hereunder to any other Person without the prior written consent of the other Parties hereto.
- Servicer may assign, whether as collateral security or otherwise, any of its rights hereunder, including the right to receive and enforce payment of amounts owed by the Company to Servicer, to any lender to or purchaser from Servicer, to any surety for Servicer or for any lender or purchaser, to any agent, trustee or other representative of any such lender, purchaser or surety, or to any special purpose entity that would carry out the provisions of this Agreement. Servicer may also cause such special purpose entity to undertake any of Servicer’s obligations hereunder with the consent of the Company, such consent not to be withheld unless, in the reasonable and good faith judgment of the Company, the creditworthiness of such special purpose entity is not then at least commensurate with that of Servicer and such special purpose entity does not have commitments from creditworthy funding sources to perform its obligations hereunder. Servicer shall be relieved of its obligations hereunder to the extent of any such permitted assumption, and such special purpose entity shall, from and after any such permitted assumption of all of Servicer’s obligations hereunder, be “Servicer” for purposes of this Agreement.
- Any assignee of Servicer permitted under this Section 3 shall be permitted to assign any of its rights hereunder, whether as collateral security or otherwise, to any other assignee to which assignment is permitted under this Section 12.3. Any immediate or subsequent assignee of Servicer permitted under this Section 12.3 shall have the benefit of Section 3.2 and all expense reimbursement, indemnification and exculpation provisions contained in this Agreement and otherwise applicable to Servicer.
No Proceedings. The Company agrees that it shall not institute against, or join any other Person in instituting against, Servicer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal, state or other bankruptcy or similar law, of any jurisdiction (including, without limitation, any proceeding referred to in the definition of Insolvency Event) for one year and one day after all debt obligations (including, without limitation, commercial paper obligations) of Servicer have been paid in full.
Recourse against Certain Parties. No recourse under any obligation or agreement of Servicer hereunder shall be had against any member, manager, investor, affiliate, officer, employee or director of Servicer by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise, it being expressly agreed and understood that the agreements of Servicer contained herein are, in each case, solely limited liability company obligations of Servicer and that no personal liability whatsoever shall attach to or be incurred by the members, managers, investors, affiliates, officers, employees or directors, as such, or under or by reason of any obligation or agreement of Servicer contained herein, or be implied therefrom, and that any and all personal liability of every such member, manager, investor, affiliate, officer, employee or director of Servicer for breaches by Servicer of any such obligations or agreements, which liability may arise either at common law or at equity, by statute or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement by Servicer.
Amendment of Agreements between Eligible Vendors and Company.
- The Vendor Agreement for each Eligible Vendor provides, in relevant part:
“Vendor agrees to indemnify the Company and/or Servicer from any loss suffered by the Company and/or Servicer arising out of the Company’s or Servicer’s payment of an Account of the Company to or for the account of the Vendor, rather than to an assignee of the Account. This Section shall be deemed an amendment to all present and future agreements between Vendor and the Company, and the Company shall be deemed an intended third –party beneficiary of this Section.”
- Company agrees that the above-quoted provision from each Vendor Agreement shall be deemed an amendment to all present and future agreements between the applicable Eligible Vendor and the Company, and that the Company shall be deemed an intended third-party beneficiary of such provision.
Waiver of Consequential Damages, Etc.; Force Majeure. In the event of a breach of this Agreement by Servicer, the Company hereby waives any right or claim to consequential, special, exemplary or punitive damages, and any claim for damages that the Company may have arising out of the breach of this Agreement by Servicer shall be limited to actual damages. Servicer will not be liable for any failure or delay in performance of its obligations hereunder to the extent caused by any event or circumstance beyond its reasonable control, including without limitation acts of God, war, terrorism, fire, flood, or failure of communications.
Choice of Law. This Agreement and all transactions contemplated hereunder and/or evidenced hereby shall be governed by, construed under, and enforced in accordance with the internal laws of the Chosen State.
- Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, including an action in tort, shall, if Servicer so elects, be instituted in (i) the United States District Court for the District in which Boise, Idaho, is located or (ii) any court sitting in Ada County, Idaho (the “Acceptable Forums”). Company agrees that the Acceptable Forums are convenient to it, and irrevocably submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue.
- Should such proceeding be initiated in any other forum, Company waives any right to oppose any motion or application made by Servicer to transfer such proceeding to an Acceptable Forum.
Third Parties. This Agreement shall confer no rights upon any Vendor or any other Person other than the Parties hereto and any immediate or subsequent assignee of Servicer permitted under Section 3.
Partial Invalidity. The invalidity or unenforceability of any one or more sections of this Agreement shall not affect the validity or enforceability of its remaining provisions.
Service of Process. In lieu of the methods of service set forth in applicable state law, service of process may be made by delivery of process, properly addressed, to a recognized nationwide mail delivery service or United States Postal Service.
Conflicts with Other Agreements. Unless otherwise expressly stated in any other agreement between the Parties hereto, if a conflict exists between the provisions of this Agreement and the provisions of such other agreement, the provisions of this Agreement shall control.
Interpretation. This Agreement and all agreements relating to the subject matter hereof are the product of negotiation and preparation by and among each Party and its respective attorneys, and shall be construed accordingly.
Counterparts. This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all signatures were upon the same instrument. Delivery of an executed counterpart of the signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement, and any Party delivering such an executed counterpart of the signature page to this Agreement by facsimile to any other Party shall thereafter also promptly deliver a manually executed counterpart of this Agreement to such other Party, provided that the failure to deliver such manually executed counterpart shall not affect the validity, enforceability, or binding effect of this Agreement.
Section Headings. Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions.
Acknowledgement. The Company acknowledges that the Company has read and understood this Agreement and that this Agreement has the same force and effect as a signed agreement.
- THE FOLLOWING TERMS APPLY IF YOUR PRINCIPAL PLACE OF BUSINESS IS IN ANY STATE OTHER THAN FLORIDA, PENNSYLVANIA, OR RHODE ISLAND
Payment to Agent. You hereby acknowledge and agree to our appointment as each Carrier’s agent to receive payment on account of Invoices meeting the requirements of this Agreement. All payments with respect to each Invoice shall be made directly to us and not to the Carrier.
Reversals. If an ACH debit to your account is returned or reversed for any reason at any time, you authorize us to resubmit the transaction or to initiate an ACH debit to any of your other bank accounts in our discretion, until your obligation to us is satisfied in full. We reserve the right to recover funds owed by you to us by any means, or to terminate your pending transactions or Account for nonpayment.
- THE FOLLOWING TERMS APPLY IF YOUR PRINCIPAL PLACE OF BUSINESS IS LOCATED IN FLORIDA, PENNSYLVANIA, OR RHODE ISLAND
Consent to Sale. You hereby irrevocably consent to the sale of each Invoice to us by a Carrier. Once we have notified you of the sale of an Invoice, you will pay any amounts due in satisfaction of such Invoice directly to us and not to the Carrier.
Reversals. If an ACH debit to your account is returned or reversed for any reason at any time, you authorize us to resubmit the transaction or to initiate an ACH debit to any of your other bank accounts in our discretion, until your obligation to us is satisfied in full. We reserve the right to recover funds owed by you to us by any means, or to terminate your pending transactions or Account for nonpayment.