PaymentWorks EarlyPay Terms of Service
In the following EarlyPay Program Agreement Terms (the “Terms”), the company receiving payment with respect to its Receivables is the “Seller,” and PaymentWorks Acquisition Company LLC “Purchaser”.
Preliminary Statements:
Seller is a supplier of goods and/or services to a Participating Customer.
PaymentWorks, Inc. (“PaymentWorks”) and each Participating Customer are parties to a certain PaymentWorks Service Agreement (together with all renewals, modifications and extensions thereof and addenda thereto, the “Customer Agreement”).
The Customer Agreement describes, among other things, the PaymentWorks EarlyPay Program, pursuant to which certain Vendors of a Participating Customer may sell Receivables at a discounted price in order to receive payments with respect to Invoices sooner than they otherwise would.
Seller has elected to participate in the PaymentWorks EarlyPay Program and, in the course of such participation, to sell its Receivables to Purchaser (who may thereafter resell such Receivables to a Third Party Purchaser, as hereinafter defined) pursuant to the terms and conditions contained in these Terms.
Therefore, Seller and Purchaser hereby agree as follows:
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Definitions. As used in these Terms, the following terms shall have the meanings indicated below:
(a) “Adverse Claim” means any lien, security interest, pledge, mortgage, title retention, charge, set-off right, offset, reduction, recovery, claw-back, abatement, deferral, withholding, reduction or other encumbrance, interest, prior sale, or claim of any kind by any Person with respect to any Receivable, or any restriction on assignment of any Receivable.
(b) “Approved Amount” means the full amount of an Approved Invoice as communicated by a Participating Customer to Servicer, including all taxes, gross-ups, duties and levies, but net of any discounts, credits or other allowances which may have been applied by the Participating Customer. The Approved Amount shall be determined without regard to any discount the Seller shall have agreed to accept as part of the PaymentWorks EarlyPay Program.
(c) “Approved Invoice” means an Invoice that a Participating Customer has indicated to Servicer is “approved” for payment to Seller.
(d) “Bankruptcy Event” means with respect to any person or entity, commencement of a voluntary case under Title 11 of the United States Code entitled “Bankruptcy,” as now or hereafter in effect, or any successor thereto (the “Bankruptcy Code”); or an involuntary case is commenced against such person or entity without dismissal within 60 days thereafter; or a custodian (as defined in the Bankruptcy Code) is appointed or takes charge over all or substantially all of such person or entity’s property, or commencement of any other proceeding relating to such person or entity under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction without dismissal within 60
days thereafter, or such person or entity is adjudicated insolvent or bankrupt; or any order of relief or otherwise approving any such case or proceeding is entered; or such person or entity suffers any appointment of any custodian or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of 60 days; or such person or entity makes a general assignment for the benefit of creditors; or any corporate action is taken by such person or entity for the purpose of effecting any of the foregoing.
(e) “Confidential Information” means the terms of these Terms, the EarlyPay Fee or Purchase Price with respect to any Receivable, the amount or terms of any Receivable, or any other information of a party, Customer, or Third Party Purchaser, or such entity’s business that the other party knows or reasonably should know to be confidential to such Person.
(f) “Due Date” means the due date for payment of a Receivable, as communicated to Servicer by the corresponding Participating Customer or indicated on an Approved Invoice.
(g) “EarlyPay Fee” means a fee, expressed in US Dollars. The EarlyPay Fee, with respect to each Purchase of Eligible Receivables hereunder, shall be determined by multiplying (i) the Approved Amount by (ii) the EarlyPay Fee Percentage.
(h) “EarlyPay Fee Percentage” means a percentage of the Approved Amount, with respect to an Approved Invoice. The EarlyPay Fee Percentage with respect to each Purchase shall be determined in accordance with a fee schedule agreed to by Seller upon Seller’s election to participate in the PaymentWorks EarlyPay Program.
(i) “Eligible Receivable” means each Receivable meeting all of the following criteria: (i) arises from a bona fide written or electronic customer order (not telephonic) from a Participating Customer; (ii) is evidenced by an Invoice; (iii) arises out of the sale of goods and related services in Seller’s ordinary course of business, or arises out of Seller’s performance of services in the ordinary course of business, which services have already been performed; (iv) does not arise out of a sale made to any affiliate of PaymentWorks, Inc., Purchaser, or Seller; (v) has no set-off, offset, claim, counterclaim, dispute or defense, genuine or otherwise, to payment or collection of all or any portion thereof; (vi) is payable in U.S. dollars and the goods related thereto are located inside the continental United States, Canada or on a foreign military base (excluding the province of Newfoundland and Labrador, the Northwest Territories and the Territory of Nunavut); (vii) does not represent a guaranteed sale, a bill and hold transaction, a sale-and-return, a sale on approval, a cash on delivery sale or a consignment sale, or is not made pursuant to any other written agreement providing for repurchase or return; (viii) any and all goods giving rise to such Receivable have been shipped to the Participating Customer and the Receivable otherwise represents a final sale; (ix) complies with all applicable laws in all material respects; (x) is not subject to any adverse security interest, lien or encumbrance (including tax liens); (xi) does not contain terms providing for payment in more than 60 days from the date of invoice; and (xxii) if arising from Government Receivables: (1) it arises from a Government Contract of which Seller holds a copy, (2) it arises from a completed task order approved for billing by the applicable United States Debtor and (3) the Federal Assignment of Claims Act has been complied with to Purchaser’s satisfaction; provided that, should the United States Debtor notify Purchaser of its refusal to recognize any assignment made under the Federal Assignment of Claims Act with respect to any Receivable, such Government Receivable will immediately become an ineligible Receivable.
(j) “Enforcement Action” has the meaning described in Section 2(h).
(k) “Government Contracts” means contracts solely between Interim Seller and a United States Debtor entered into in the ordinary course of Seller’s business and with respect to which Seller provides goods or services to such United States Debtor.
(l) “Government Receivables” means Receivables originating from Government Contracts.
(m) “Invoice” means an electronic or paper invoice submitted by Seller to a Participating Customer, for goods or services purchased from Seller by such Participating Customer.
(n) “Lockbox Account” means the deposit account held by Payment Works, Inc., Purchaser, or the Third Party Purchaser, as determined by Purchaser, to collect payments associated with Receivables purchased hereunder.
(o) “Participating Customer” means, at any time, a customer of PaymentWorks, Inc. meeting Purchaser’s underwriting/eligibility requirements that purchases goods or services from Seller and that has entered into an agreement with PaymentWorks, Inc. relating to the PaymentWorks EarlyPay Program and for which the amount of Receivables payable by such Participating Customer are entitled to the benefits of credit insurance. A Participating Customer is an account debtor under the UCC.
(p) “PaymentWorks EarlyPay Program” means the program offered by PaymentWorks and operated by Purchaser, the terms and conditions of which are described in this Agreement, which provides certain Vendors with the opportunity to receive early payment with respect to Approved Invoices.
(q) “Person” means an individual, business (in any form), government agency, or political subdivision.
(r) “Proceeds” means “proceeds” as defined in the UCC.
(s) “Purchase” means the acceptance by Seller hereunder of an offer to purchase by Purchaser of a Receivable in advance of the Due Date, for the Purchase Price.
(t) “Purchase Price” means the amount to be paid by Purchaser to Seller for the purchase of a Receivable, determined by subtracting (i) the EarlyPay Fee from (ii) the Approved Amount with respect to the Approved Invoice evidencing the Receivable.
(u) “Receivable” means an account that relates to Seller’s right to receive payment from a Participating Customer of the Approved Amount of an Approved Invoice on the Due Date, resulting from a business relationship between such Participating Customer and Seller.
(v) “Receivables Servicing Agreement” means an agreement between Purchaser and PaymentWorks (or such other Servicer/sub-servicer from time to time), acknowledging, among other things, that Purchaser will purchase Receivables and providing that Servicer will perform certain servicing functions, as such agreement may be renewed, modified, extended or supplemented from time to time.
(w) “Related Security” means, with respect to any purchased Eligible Receivable, as applicable: (i) all of Seller’s interest in all credits from vendors upon the return to, recall or repurchase by such vendor; (ii) all books and records relating to, and all instruments and chattel paper that may evidence, such Eligible Receivable; (iii) all other security interests or liens and property subject thereto from time to time purporting to secure payment of such Eligible Receivable, whether pursuant to the contract related to such Eligible Receivable or otherwise, together with all UCC financing statements or similar filings relating thereto; (iv) all of Seller’s rights, interests and claims under the related contracts and all guaranties, letters of credit, indemnities, insurance (including any credit insurance) and other agreements or arrangements supporting or securing payment of such Eligible Receivable, or otherwise relating thereto; and (v) all proceeds and products of any of the foregoing.
(x) “Servicer” means PaymentWorks or such other Person as may be designated to perform certain collection and servicing functions: (i) by Third Party Purchaser, with respect to any Eligible Receivable purchased by Third Party Purchaser, or (ii) by Purchaser with respect to any other Purchased Receivable.
(y) “Settlement” means the acceptance by Seller of the Purchase Price for the sale of a Receivable to Purchaser pursuant to these Terms.
(z) “Third Party Purchaser” means Mitsubishi HC Capital America, Inc., and its successors and assigns, and shall expressly include any replacement third party purchaser.
(aa) “UCC” means as the Uniform Commercial Code adopted in the applicable jurisdiction.
(bb) “United States Debtor” means an Participating Customer that is the United States or any department, agency or instrumentality thereof.
(cc) “Vendor” means a supplier of goods or services to a Participating Customer.
All terms defined in the UCC have the same definitions herein as specified therein, with Article 9 prevailing in the case of any internal conflicts therein
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Sale of Receivables.
(a) Subject to the terms and conditions of these Terms, (1) Seller agrees to offer to sell all of its right, title and interest in and to Eligible Receivables to Purchaser, and (2) Purchaser shall purchase at Purchaser’s sole discretion, certain Eligible Receivables from Seller.
(b) Upon Purchaser’s commitment to pay such Purchase Price, which commitment shall be deemed to have been given upon the Participating Customer’s communication of the Approved Amount of the corresponding Approved Invoice to Purchaser or PaymentWorks, Inc., the Eligible Receivable shall (without further action by Seller or Purchaser) be conveyed to Purchaser along with all of Seller’s claims and rights with respect thereto and to any and all amounts owing by the Participating Customer with respect to the Eligible Receivable. Promptly thereafter, Purchaser shall pay Seller the Purchase Price for the corresponding Eligible Receivable.
(c) Seller shall do all things reasonably requested or required by Purchaser to document any Purchase, including changes to its books and records and if applicable, notifying and/or obtaining the consent of Participating Customer. Each Purchase is intended to constitute a bona fide, true sale of an Eligible Receivable. Without limiting the foregoing, upon the purchase of an Eligible Receivable as provided in these Terms, Seller shall cause its financial records to reflect the satisfaction of Participating Customer’s obligation to pay such Eligible Receivable. If contrary to their intentions, any Eligible Receivable is not treated as fully sold to Purchaser, then Seller shall be deemed to have granted (and does hereby grant) to Purchaser a perfected first priority security interest in all of its right, title and interest in and to such Eligible Receivable and all other rights of Seller and obligations of Participating Customer with respect to such Eligible Receivable, including all Related Security, and all the Proceeds of the foregoing. Seller hereby authorizes Purchaser to file such UCC financing statements or similar filings or send (or cause to be sent) such notices of assignment or obtain such Participating Customer acknowledgements, as Purchaser may deem necessary to perfect or protect the Purchases or any such grant of a security interest, so as to evidence the Purchase by Purchaser, and ensure that Purchaser possesses a perfected interest with first priority over all other claimants in the Eligible Receivables purchased hereunder and all Proceeds thereof, including without limitation all cash, checks, money orders and other items of value, including all funds that are received by or on behalf of Seller in payment of any amounts owed thereon (including purchase price, finance charges, interest and all other charges), or applied to amounts owed thereon (including insurance payments and net proceeds of disposition of repossessed goods or other collateral or property of the related Participating Customer or any other Person liable for payment thereon and available to be applied thereon), now or hereafter paid, deposited, credited or held in the Lockbox Account. For the avoidance of doubt, the grant by Seller hereunder excludes any Eligible Receivables to the extent repurchased by Seller pursuant to this Agreement.
(d) Seller retains all performance and other obligations to Participating Customer arising out of, relating to, or in connection with the commercial transactions underlying all purchased Receivables.
(e) Purchaser agrees that it bears the risk of nonpayment by Participating Customer of any Eligible Receivable purchased hereunder solely as a result of the Participating Customer’s financial inability to pay, Bankruptcy Event, or insolvency (as opposed to an unwillingness to pay as a result of issues or disputes with the goods or services provided) (“Credit Risk”), such assumption of credit risk being effective on the day of the Purchase of such Eligible Receivable in accordance with these Terms; provided, however, that notwithstanding anything herein to the contrary, Seller shall not be relieved of any obligation with respect to representations contained in Section 4 hereof. Seller irrevocably agrees that it will purchase from Purchaser any outstanding Receivables purchased by Purchaser: (a) upon the termination of these Terms, and (b) within 3 business days after receipt of Purchaser’s written notice, if (i) the Participating Customer was not eligible as of the date of Receivable creation, or (ii) the Receivable was not an Eligible Receivable on the date of Receivable creation, or such Receivable remains uncollected after 50 days from the invoice date (upon such date it will be deemed to be a servicing default by Seller), in the case of both (a) and (b) at a repurchase price equal to the Purchase Price actually paid to the Seller less any amounts already paid to the Purchaser on such Receivable; provided, however, that in no case will Seller have any obligation to repurchase any Receivable pursuant to these Terms solely as a result of the Customer’s Credit Risk, including any Receivable that is repurchased by Seller hereunder and which Customer’s Credit Risk arises within the 30 day period following the repurchase by Seller.
(f) Notwithstanding any contrary provision contained in these Terms, Purchaser may at any time decline to purchase any Eligible Receivable if any portion of the corresponding Invoice is in dispute, the Invoice is subject to any credit or refund, or for any other or no reason whatsoever. Additionally, the parties acknowledge that any Participating Customer may elect at any time to cease being a Participating Customer, whereupon Seller shall not sell, and Purchaser shall not purchase, any further Receivables on account of which such customer is obligated.
(g) Seller hereby authorizes Servicer to electronically credit Seller’s Bank Account (and, if necessary, to electronically debit such account to correct any erroneous credits or effectuate any Repurchase Obligation, as defined in Section 4), to effect purchases pursuant to this Section 2. As used herein, “Seller’s Bank Account” shall mean the bank account of Seller previously provided by Seller to PaymentWorks as part of PaymentWorks’ supplier onboarding process, or such other bank account of which Seller may give written notice to Servicer.
Seller agrees that ACH transactions hereby authorized comply with applicable law. Such credits will occur, for each Purchase, upon Settlement as provided herein and shall be in the amount of the Purchase Price, less any applicable setoff or debits. This authorization will remain in full force and effect until Seller notifies Servicer pursuant to Section 11(d) hereof, that it wishes to revoke this authorization.
(h) Purchaser shall have the right at any time to demand, sue for, collect and receive payment for any and all Receivables that have been Purchased hereto (each such action, an “Enforcement Action”). In furtherance of such rights and other rights of Purchaser with respect to such Receivables, Seller hereby irrevocably appoints Purchaser, and any Person designated by Purchaser in writing from time to time, as its true and lawful attorney with full power of substitution for it and in its name, place and stead, at any time, to take or refrain from taking any Enforcement Action and to endorse the name of Seller on all checks, collections, receipts or instruments given in payment or part payment of such Receivables. Seller furthermore agrees to follow any written instruction from Purchaser directing it to take or refrain from taking any Enforcement Action at Purchaser’s expense.
(i) Seller hereby irrevocably appoints Purchaser as the agent of Seller to execute and deliver in Seller’s name such agreements and documents, to complete or endorse such checks and other instruments, to institute or defend such proceedings and to perform such other acts as Purchaser may consider necessary to secure the performance of any of Seller’s obligations under these Terms. Purchaser may at its discretion, but shall not be obligated to, take any such actions.
(j) With respect to any Receivables resold by Purchaser to Third Party Purchaser, Seller expressly acknowledges and agrees that, consistent with Section 10, Third Party Purchaser is vested with, and shall have the full right and authority to exercise, the rights and privileges granted to Purchaser under these Terms, including, without limitation, Sections 2(c), 2(h), 2(i), and 3, and Seller shall be obligated to comply with any written instructions of Third Party Purchaser the same as if Third Party Purchaser were Purchaser hereunder. Purchaser and Seller expressly acknowledge and agree that Third Party Purchaser and its successors and assigns are intended third party beneficiaries under these Terms.
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Collection of Receivables. Upon the request of Servicer at any time, Seller shall instruct (or cooperate with Servicer to instruct) Participating Customers to pay all amounts owing on purchased Receivables directly to Purchaser or its assignee. In the event any such amounts are paid to Seller or to any third party acting as collection agent on Seller’s behalf, Seller shall pay such amounts to Purchaser or its assignee within 2 business days of receipt. Until so paid, Seller shall hold such funds in trust as the exclusive property of Purchaser or its assignee and segregated from Seller’s and such third party’s other property. Seller irrevocably grants Purchaser, and Third Party Purchaser (as repurchaser) full power of attorney and appoints Purchaser or Third Party Purchaser, as the case may be, as its agent to execute and deliver in Seller’s name, such documents, including any notices of assignment; to complete or endorse such checks and other instruments; to institute or defend such proceedings; and to perform such other acts as Purchaser or Third Party Purchaser, as the case may be, may consider necessary, to collect amounts due in connection with the purchased Receivables, to effectuate any Repurchase Obligation, or to otherwise secure the performance of any of Seller’s or Participating Customer’s obligations in connection with these Terms or the purchased Receivables.
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Representations and Warranties. Seller represents and warrants to Purchaser, upon entering into these Terms and as of the date of each Purchase that: (a) it is not insolvent, nor will it be rendered insolvent by its performance of and compliance with these Terms; (b) these Terms and each Purchase represents a legal, valid and binding obligation of Seller enforceable in accordance with its terms, (c) the execution, delivery and performance of these Terms by Seller have been duly authorized by all necessary corporate or other action required for Seller; (d) each employee, agent or representative of Seller communicating an acceptance of or agreement to these Terms or any Purchase has been duly authorized by Seller to give such acceptance or agreement on Seller’s behalf, and Purchaser may fully rely on such authorization; (e) nothing in the transactions between Seller and Participating Customer that give rise to Receivables, and no Purchase, violates any applicable sanctions, anti-money laundering, anti-corruption or any other applicable law or regulation, and the goods or services provided to Participating Customer by Seller do not include arms, weapons, weapon components, or any goods or services the supply of which is contrary to export controls or other applicable law; (f) the goods and/or services the sale of which gave rise to each Eligible Receivable have been fully delivered and/or performed by Seller, (g) each Eligible Receivable is a binding obligation of Participating Customer that is payable in full without any further performance by Seller; (h) Seller has not and will not do nothing to adversely affect the amount to be paid by Participating Customer; (i) each Eligible Receivable is sold to Purchaser free of any Adverse Claim; (j) with respect to each Eligible Receivable, Seller holds one hundred percent (100%) of the legal and beneficial right, title and interest in and to such Eligible Receivable; (k) except for the Purchase by Purchaser hereunder, Seller has not and shall not sell, assign encumber, pledge as collateral, or otherwise dispose of any Eligible Receivable that has been Purchased; (l) no Participating Customer or any of its affiliates is an affiliate of Seller; and (m) each purchased Receivable constitutes an Eligible Receivable.
If any of the foregoing representations and warranties made by Seller with respect to any Receivable(s) sold to Purchaser proves to have been incorrect or untrue as of the date made, Seller shall promptly repurchase such Receivable(s) upon demand by Purchaser (“Repurchase Obligation”). Purchaser has the right to offset against any amounts owed to Seller any obligations of Seller to Purchaser under this Agreement or related to the purchased Eligible Receivables.
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Indemnification. Seller shall indemnify, defend and hold harmless Purchaser, its assignee, and their respective directors, officers, members, managers and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees) (collectively, “Claims”), that may at any time be incurred by reason of any claim arising out of or relating to (1) any breach by Seller of its obligations under these Terms; (2) any representation or warranty made by Seller hereunder proving to have been inaccurate or untrue when made; (3) any dispute or defect with respect to any Receivable or the commercial transaction giving rise to any Receivable; or (4) taxes of any kind applied to any payment made under or in connection with these Terms. Notwithstanding the foregoing, Seller shall have no obligation to indemnify, defend, or hold harmless Purchaser from any Claims arising out of losses in respect of purchased Receivables that are uncollectible solely on account of the insolvency, bankruptcy, lack of creditworthiness or other financial inability to pay of the related Participating Customer. Purchaser shall have the right to employ separate counsel and participate in the defense at its own expense.
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NO CONSEQUENTIAL OR PUNITIVE DAMAGES. NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS AGREEMENT, AND REGARDLESS OF ANY FAULT OR NEGLIGENCE, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SALES, LOST SAVINGS, LOST PROFITS (ANTICIPATED OR ACTUAL), LOSS OF USE, DOWNTIME, INJURY TO PERSONS OR DAMAGE TO PROPERTY AND CLAIMS OF THIRD PARTIES), HOWEVER CAUSED, ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT,
WHETHER OR NOT SUCH PARTY HAS BEEN APPRISED OR NOTIFIED THAT ANY SUCH DAMAGES OR LOSSES ARE POSSIBLE OR LIKELY, AND WHETHER OR NOT ANY PERMITTED REMEDY HAS FAILED ITS ESSENTIAL PURPOSE.
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Confidentiality. Each party agrees to maintain the confidentiality of any Confidential Information of the other party to which it has access, and to use such Confidential Information only for the purposes of excising its rights and performing its obligations under these Terms. Notwithstanding the foregoing, either party may disclose Confidential Information obtained from the other party (a) to any authority of competent jurisdiction pursuant to legal process or regulatory requirement; and (b) to its subsidiaries, affiliates, professional advisors and service providers subject to a similar obligations of confidentiality. Additionally, Purchaser may disclose Confidential Information obtained from Seller to Third Party Purchaser, Servicer, and any Person to whom Purchaser transfers, sells or assigns (or proposes to transfer, sell or assign) all or any of its rights, interests and obligations under these Terms and in any Receivables.
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Multiple Participating Customers. In the event PaymentWorks has two or more customers that purchase goods or services from Seller and participate in the PaymentWorks EarlyPay Program (and are therefore Participating Customers), then all references in these Terms to “Participating Customer,” shall be interpreted to refer to each such Participating Customer independently and all provisions of these Terms shall likewise be interpreted, and shall apply, with respect to each such Participating Customer independently. Seller and Purchaser agree to exchange relevant information from time to time for the purpose of identifying customers of Seller that are Participating Customers, and Seller and Purchaser shall agree upon and maintain at all times a current list of customers of Seller that are Participating Customers.
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Data and Reports. Title to and intellectual property rights in Seller’s data contained within PaymentWorks’ systems (“Data”) shall remain with Seller. Notwithstanding the foregoing, Servicer shall have the unrestricted right to use any Data provided by any Person to the PaymentWorks systems for (a) operational, administrative, internal reporting and billing purposes, and (b) alone or combined with other data to create and disseminate trend analyses, statistical reports and similar information.
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Third Party Rights. These Terms shall inure to the benefit of Third Party Purchaser, if any, and any of its successors or assigns; Third Party Purchaser, if any, and its successors and assigns are third party beneficiaries of these Terms. Third Party Purchaser may exercise its rights as a third party beneficiary of these Terms in Third Party Purchaser’s own name, without Purchaser’s, Servicer’s or Seller’s consent, and without joinder of Purchaser, Servicer, or Seller in any proceeding. The rights of Third Party Purchaser pursuant to this Section 10 are irrevocable and shall survive any expiration or termination of these Terms.
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Miscellaneous.
(a) Purchaser may update the applicable Fee Schedule from time to time upon thirty (30) days’ advance written notice to Seller. The updated Fee Schedule shall be deemed accepted and become binding upon the expiration of the thirty (30) day notice period unless Seller shall have affirmatively opted out of the EarlyPay Program. To the extent permissible under applicable law, Purchaser may update or amend these Terms upon thirty (30) days’ advance written notice to Seller. The updated Terms shall be deemed accepted and become binding upon the expiration of the thirty (30) day notice period unless Seller shall have affirmatively opted out of the EarlyPay Program. The current Fee Schedule and Terms shall be available at Paymentworks.com.
(b) Seller may not transfer, assign or delegate any rights or obligations hereunder without Purchaser’s prior written consent. Purchaser may, at any time and without prior notice or consent of
Seller, assign or transfer any rights hereunder to Third Party Purchaser.
(c) These Terms shall become effective on the date first executed or otherwise agreed to by Seller pursuant to Section 11(g) below and shall remain in effect until terminated in accordance herewith. Either party may terminate these Terms at any time upon 20 days’ written notice to the other party. Purchaser may immediately terminate these Terms upon Seller’s default of any term hereunder. Upon termination of these Terms, Seller shall cease selling to Purchaser, and Purchaser shall cease purchasing from Seller, Receivables; provided, that the rights and remedies of the parties with respect to purchase and sale transactions completed hereunder prior to such termination shall remain in effect. The provisions of these Terms that, by their nature extend beyond termination, including, without limitation, Sections 2(c), 3, 4, 5, 6, 7 and 10 shall survive any termination or expiration of these Terms.
(d) Except as otherwise specified herein, all notices to a party hereunder shall be in writing and shall be deemed to have been given upon: (1) personal delivery; (2) the second business day after mailing; (3) the second business day after sending by confirmed facsimile, or (4) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to Seller shall be addressed to Seller at the address, facsimile number or email address of Seller as reflected in Servicer’s system. Notices to Purchaser shall be addressed to:
PaymentWorks Acquisition Company LLC 280 Moody Street, #5
Waltham, MA 02453
Email: Thomas.Hopkins@paymentworks.com(e) These Terms shall be governed by the laws of the State of New York without regard to any conflicting choice of law rules. Each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of any state or U.S. federal courts sitting in New York, New York, and agrees that any such court shall be a proper venue for any action or proceeding brought in connection with these Terms. Each of the Seller and Purchaser hereby waives any right to trial by jury in connection with any dispute involving these Terms or any transaction to which they relate.
(f) In the event that any provision of these Terms is held invalid, the remaining terms and conditions of these Terms shall remain in full force and effect.
(g) In the event that Seller uses a “click/accept” or any other electronic indication of agreement action, Seller agrees that such action creates a fully binding and enforceable contract, upon acceptance by Purchaser, as though executed by traditional physical rather than electronic means.
