Effective as of: December 17, 2018
This Receivables Purchase and Participation Agreement sets forth the terms and conditions for a program in which you may sell to us all or part of the receivables generated by your unpaid invoices; and for your general responsibility to service, collect, and administer the receivables we purchase or participate in.
Please read this Agreement carefully before agreeing to it. Capitalized terms used in this Agreement are defined in Section 22.
1. Offers; Purchases
From time to time, you may request that we purchase or participate in Receivables by submitting to us a Schedule identifying the Receivables owed to you by Qualified Account Debtors, which you wish for us to consider offering to purchase or participate in. We may decide in our sole discretion to purchase or participate in all, some, or none of the Receivables that you identify. At our request, you will deliver to us any supporting documentation and information with respect to Receivables you identified, including purchase orders, delivery receipts, and service reports. If we wish to purchase or participate in any of the Receivables you identified, and if you accept our offer, we will pay you the Purchase Price related to each Purchased Receivable and each Participation in a Participated Receivable. A bill of sale or similar document will evidence each such transaction. For Purchased Receivables we may, but are not required to, deliver notices of assignment to the related Qualified Account Debtors, notifying them that we have purchased the Purchased Receivables and directing their payments to us or our designee. As provided in Section 3(b), we intend for you to be our initial designee for such purposes. At the time we pay you the applicable Purchase Price, you sell, transfer, convey, and assign to us all of your right, title, and interest in and to the related Purchased Receivables and Participations. We do not assume any liabilities or obligations related to any Purchased Receivable, Participation, or Participated Receivable; any such liabilities and obligations will remain solely with you.
2. Settlement Account
You must maintain a Settlement Account that is linked to your Wave Account. You may not use the Settlement Account for personal, family, or household purposes. All payments received by you and your employees, agents, contractors, and representatives (other than us) for Receivables purchased or participated by us must be immediately deposited into and maintained in the Settlement Account. You authorize us to initiate ACH debits from the Settlement Account to ourselves to process and settle payments on Purchased Receivables and Participated Receivables owed to us, Adjustment Amounts, Repurchase Prices, Discounts, and any other fees or amounts owed us under this Agreement. You also authorize us initiate ACH credits to the Settlement Accounts as provided in this Agreement. If a transaction is rejected, we may debit the Settlement Account again until the transaction is completed. You are responsible for any fees incurred by us or you resulting from a rejected ACH transaction, such as returned payment fees and non-sufficient fund fees. We are not responsible for any overdrafts or rejected transactions that may result from us debiting any amount authorized under this Agreement.
3. Servicing of Purchased Receivables and Participated Receivables.
- You are responsible for servicing, collecting, and administering Participated Receivables. You will follow any directions we give you regarding servicing, collecting, and administering Participated Receivables.
- All Purchased Receivables will be serviced, collected, and administered by us or our designee, with full right to take any action in doing so, including changing the terms of any Purchased Receivables. You will provide us any assistance we request regarding servicing, collecting, and administering any Purchased Receivables. Pursuant to such authority, we intend to appoint you as our agent for the limited purpose of servicing, collecting, and administering Purchased Receivables, as directed by us and according to the scope of authority that we will establish. You will accept such appointment when it is made. Such appointment will be revocable upon our notice to you at any time in our sole discretion.
- If you or any of your employees, agents, contractors, and representatives (other than us) receives any payment on a Purchased Receivable or Participated Receivable, you must mark the related Receivable as “paid” and input the amount paid in the Wave Platform, and deposit within one business day and maintain such payment in the Settlement Account.
- Payments on Participated Receivables, and on Purchased Receivables while you are our agent pursuant to Section 3(b), will be made in your name. You may use the services of any payment processor, including us or any of our affiliates, under an agreement that is separate from this Agreement to facilitate your receipt of such payments. If payment on a Purchased Receivable or Participated Receivable is processed by us or any of our affiliates under an agreement that is separate from this Agreement, then we will mark the related Receivable as “paid” in the Wave Platform and will either (i) deposit such payment in the Settlement Account by ACH credit or (ii) retain the amount of such payment owed to us on such Receivable and deposit any remaining amount in the Settlement Account by ACH credit.
- We may debit from the Settlement Account (i) any remittance payment owed to us from payments on any Purchased Receivable or Participated Receivable and (ii) any other amounts owed to us under this Agreement.
4. Power of Attorney
You appoint us and our designees your true and lawful attorney in fact, with full power to take any action relating to the Purchased Receivables in your name and place that we deem advisable and consistent with the terms of this Agreement. You will timely execute and deliver to us any power of attorney instrument evidencing our authority and power under this Section 4.
5. General Representations and Warranties.
You make the following representations and warranties to us on a continuing basis: (a) your execution, delivery, and performance of this Agreement (i) have been authorized by all necessary corporate action, (ii) are for only business purposes and not for personal, family, or household purposes, and (iii) do not violate applicable law or the provisions of any agreement to which you are bound; (b) the Settlement Account is used only business purposes and not for personal, family, or household purposes; (c) the persons transacting with us are authorized by you to do so; (d) this Agreement constitutes the legal, valid, and binding agreement of you enforceable in accordance with its terms; (e) you and any of your employees, agents, contractors, and representatives have all licenses, registrations, and authorizations required to conduct your and their businesses and to perform your and their obligations under this Agreement; and (f) any information, materials, data, content, or documents you directly or indirectly provide to us are true, correct, and complete.
6. Representations and Warranties Concerning Receivables.
For each Receivable submitted to us on a Schedule pursuant to Section 1, you make the following representations and warranties to us as of the time of such submission and as of the time we pay you the Purchase Price for any such Receivable that we purchase or participate in: (a) you hold legal title to the Receivable, free and clear of any liens or encumbrances; (b) you have not sold, pledged, assigned, or encumbered the Receivable; (c) no person has any rights, interests, or claims in or to the Receivable; (d) the Receivable is not in dispute, and is presently and unconditionally owing; (e) the Receivable is not past due and represent amounts owed by the Account Debtor arising from your actual and timely performance or provision of goods, property, or services to the Account Debtor in the ordinary course of your business; (f) the Receivable is not subject to any claim, set-off, defense, or counterclaim of any kind; (g) no agreement has been made under which the Account Debtor may claim any deduction or discount against the Receivable; (h) the Account Debtor is liable for the full amount of the Receivable and has not objected to its payment or the quality or quantity of the goods, property, and services performed or provided; (i) the Receivable has not been modified, dismissed, settled, or paid; (j) there has been no error, misrepresentation, negligence, fraud, omission, or violation of law on the part of any person with respect to the Receivable or its underlying goods, property, or services; and (k) you have no knowledge that the Account Debtor has filed for bankruptcy or receivership or has been having any difficulty paying amounts due to you or others in full and when due.
7. Additional Covenants
You covenant to us as follows:
Books and Records. You will treat our purchase of any Purchased Receivable and Participation as a sale for tax, accounting, and financial reporting purposes, and your books and records will reflect the sale of any Purchased Receivable and Participation to us.Further Assurances. You will take all actions, including the execution of documents, requested by us to preserve and protect our right, title, and interest in and to any Purchased Receivable and Participation, including cooperating with processing and settling any trade credit insurance claims.No Impairment. You will not take any action (including placing or allowing placement of a lien or security interest, except ours, on any Purchased Receivable or Participated Receivable) or make any omission that has, individually or in the aggregate, an adverse effect on any Purchased Receivable or Participated Receivable or on our ability to collect on any Purchased Receivable or Participation.
8. Disputes; Receivable Credits; Adjustments
If a Dispute related to a Purchased Receivable or Participated Receivable occurs for any reason, you must document it and notify us within three business days of your becoming aware of it. Resolving Disputes is your sole responsibility. You will work directly with Account Debtor to resolve the Dispute. You will provide us periodic updates, as requested by us, regarding the status of the Dispute. A Dispute is resolved when Account Debtor pays the full Receivable balance (or unpaid remainder of the Receivable), or Account Debtor receives a Receivable Credit for the amount that is subject to the Dispute. You may grant Account Debtor a Receivable Credit at any time and for any reason, regardless of whether a Dispute occurs. If a Receivable Credit related to a Purchased Receivable or Participated Receivable occurs, you must document it and notify us within three business days of the amount of any reduction (i.e., the amount no longer owed by Account Debtor) to the Receivable in relation to a Receivable Credit. You must immediately pay us the Adjustment Amount related to any Receivable Credit. You authorize us to initiate ACH debits from the Settlement Account to ourselves in the amount of any such Adjustment Amount you owe us.
Following the occurrence of any Repurchase Event relating to any Purchased Receivable or Participated Receivable, at our request, you must repurchase any such Purchased Receivable or Participation by paying us the Repurchase Price. You must immediately pay us the Repurchase Price. You authorize us to initiate ACH debits from the Settlement Account to ourselves in the amount of any such Repurchase Price you owe us.
We may offset or cause a set-off of any ancillary fee, Adjustment Amount, Repurchase Price, indemnification, or other amount you owe us from any Purchase Price and from any other amounts owed or to be provided to you by us or by any of our affiliates under this Agreement or under any agreement that is separate from this Agreement, including any payment on any Receivable processed by us or any of our affiliates. You authorize us to initiate ACH debits from the Settlement Account to ourselves in the amount of any such setoff you owe us.
You will indemnify, defend, and hold us harmless against any claims, litigation, investigations, proceedings, losses, damages, fines, penalties, liabilities, settlements, costs, fees, and expenses (including attorneys' fees) incurred by us arising out of or relating to (a) a breach by you of any of your representations, warranties, covenants, or agreements contained in this Agreement or (b) your failure to perform any of your obligations in this Agreement.
12. Limitation of Liability
WE WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND ARISING FROM OR RELATED TO ANY BREACH OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, INCLUDING LOSS OF PROFITS, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. OUR MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES ARISING FROM OR RELATED TO THIS AGREEMENT WILL BE THE HIGHER OF (A) $1,000 (ONE THOUSAND DOLLARS); OR (B) THE TOTAL AMOUNT OF DISCOUNTS AND FEES, IF ANY, PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE MONTH PRIOR TO YOU BRINGING THE CLAIM.
13. Term; Termination; Survival
- Term. The term of this Agreement will commence on the effective date set forth below and continue until terminated by either party.
- Termination. Either party may terminate this Agreement at any time and for any reason upon notice to the other party. Termination will become effective on the later date specified in such notice, or upon receipt of such notice if no date is specified.
- Survival. Sections 1, 3 to 4, 7 to 12, 13(c), 14 to 17, and 20 to 22 will survive any termination of this Agreement. We will retain and may use your name, e-mail address, and other information, materials, data, content, or documents that you have provided us or that we have obtained or produced following termination, unless prohibited by applicable law. Any such termination will not affect in any way our right, title, or interest in and to any Purchased Receivable or Participation.
14. Governing Law
THE LAW, INCLUDING THE STATUTES OF LIMITATION, OF THE STATE OF DELAWARE WILL GOVERN THIS AGREEMENT, THE INTERPRETATION AND ENFORCEMENT OF ITS TERMS AND ANY CLAIM OR CAUSE OF ACTION (IN LAW OR EQUITY), CONTROVERSY OR DISPUTE ARISING OUT OF OR RELATED TO IT OR ITS NEGOTIATION, EXECUTION OR PERFORMANCE, WHETHER BASED ON CONTRACT, TORT, STATUTORY OR OTHER LAW, IN EACH CASE WITHOUT GIVING EFFECT TO ANY CONFLICTS-OF-LAW OR OTHER PRINCIPLE REQUIRING THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
- Arbitration. The parties agree that all Claims between or among them will be resolved by binding arbitration through JAMS. Any arbitration proceeding will proceed in the State of Delaware, or such other location agreed upon by the parties. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Either party may initiate arbitration by serving on the other party a written demand for arbitration. The parties covenant and agree that the arbitration will commence within 30 days of the date on which a written demand for arbitration is served.
- Opt-Out. YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION WITHIN 30 DAYS OF THE DATE OF THIS AGREEMENT BY SENDING NOTICE OF YOUR DECISION TO OPT-OUT, ALONG WITH YOUR LEGAL NAME/DBA, PHONE NUMBER, E-MAIL ADDRESS, AND MAILING ADDRESS, TO: ATTN: LEGAL DEPARTMENT, WAVE FINANCIAL USA INC., 235 CARLAW AVE, SUITE 501, TORONTO, ON M4M 2S1, CANADA.
- Governing Rules. Any arbitration proceeding will be conducted by JAMS in accordance with JAMS Streamlined Arbitration Rules and Procedures or the Expedited Procedures (“Rules”). If a conflict or inconsistency arises between the Rules and this arbitration provision, this arbitration provision will control. For a copy of relevant Rules or for other information about JAMS, contact them at: email@example.com, http://www.jamsadr.com, or 1-800-352-5267. To file a Claim with JAMS, mail JAMS’ Demand for Arbitration form to: JAMS Resolution Center, 1155 F Street, NW, Suite 1150, Washington, D.C. 20004]
- Applicability of the FAA. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding any other governing law provision in this Agreement, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations and will honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered and enforced, including by garnishment, attachment, foreclosure, or other post-judgment remedies, in any court having jurisdiction. The arbitrator’s decision will be final and binding, except for any right of appeal provided by the FAA, in which case any party can appeal the award to a three-arbitrator panel administered by the selected arbitration administrator.
- Hearing. If a Claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents the parties submit to the arbitrator, unless a party requests a hearing or the arbitrator determines that a hearing is necessary. If a Claim exceeds $10,000, the right to a hearing will be determined by the Rules. A party may request a telephonic hearing if permitted by the Rules.
- Small Claims Court. Notwithstanding any other provision in this Agreement, each party retains the right to pursue in small claims court any dispute within that court’s jurisdiction. Further, this arbitration provision will apply only to disputes in which either party seeks to recover an amount of money (excluding attorneys’ fees) that exceeds the jurisdictional limit of the small claims court.
- Fees; Costs. The party initiating the arbitration will pay the filing fee. You may seek a waiver of the initial filing fee or any other fees incurred in arbitration.
IF YOU BELIEVE YOU CANNOT PAY OR WILL NOT BE ABLE TO PAY THE FILING FEE OR OTHER FEES REQUIRED TO INITIATE ARBITRATION, NOW OR IN THE FUTURE, YOU MAY DECIDE TO OPT-OUT OF THIS ARBITRATION PROVISION AS DESCRIBED IN SECTION 15(b).
If either party fails to submit to arbitration following a proper demand to do so, that party will bear the costs and expenses, including attorneys’ fees, incurred by the party compelling arbitration.
Except as provided in the preceding paragraph, each party will bear its own costs and fees and an equal share of the arbitrators’ and administrative fees of arbitration (other than the filing fee), unless the arbitrator determines how the costs and expenses of the arbitration will be allocated between the parties. Allocation of fees and costs relating to appeals in arbitration will be handled in the same manner. For an explanation and schedule of the fees that apply to an arbitration proceeding, contact JAMS at the address in Section 15(c). The appropriate fee schedule in effect from time to time is incorporated by reference into this arbitration provision.
Class Proceedings; Consolidations. NO PARTY TO THIS AGREEMENT WILL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION, OR TO INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.Rights; Enforceability; Arbitrability. An arbitrator will decide all other issues pertaining to arbitrability, validity, interpretation, and enforceability of this arbitration provision. This arbitration provision will continue to govern any claims, disputes, or controversies that may arise without regard to any termination or cancellation of this Agreement.
IF ARBITRATION IS COMMENCED, NEITHER PARTY WILL HAVE THE RIGHT TO (i) HAVE A COURT OR JURY DECIDE THE CLAIM BEING ARBITRATED, (ii) ENGAGE IN PRE-ARBITRATION DISCOVERY (I.E., THE RIGHT TO OBTAIN INFORMATION FROM THE OTHER PARTY) TO THE SAME EXTENT THAT A PARTY COULD IN COURT, (iii) PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS IN A CLASS ACTION, IN COURT OR IN ARBITRATION, RELATING TO ANY CLAIM SUBJECT TO ARBITRATION, OR (iv) JOIN OR CONSOLIDATE CLAIMS OTHER THAN THE PARTY’S OWN. OTHER RIGHTS AVAILABLE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
16. Jury Trial Waiver
EACH PARTY WAIVES THE RIGHT TO A 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 THIS AGREEMENT OR ITS ENFORCEMENT, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. EACH PARTY ACKNOWLEDGES THAT IT MAKES THIS WAIVER KNOWINGLY, WILLINGLY, VOLUNTARILY, WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH ITS ATTORNEYS.
17. Class Action Waiver
EACH PARTY WAIVES 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 OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (a) THE PREVAILING PARTY WILL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (b) 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.
18. Electronic Business; Notices
Electronic Business; Notices. You agree to conduct business with us electronically, including the execution of this Agreement. You agree that we may provide you notices, disclosures, electronic records, and other communications by e-mail, by posting in your Wave Account, or by regular mail. We will use the e-mail address and postal mail address you provide us. It is your responsibility to promptly update us with e-mail address and postal mail address changes. Communications will be considered received by you when sent by us to the e-mail address or postal mail address we have on file, even if you have changed your e-mail address or postal mail address without notifying us. Any notice provided by you to us will be effective upon delivery by e-mail to: firstname.lastname@example.org
We may modify this Agreement at any time in our sole discretion. Any such modifications will become effective 30 days after we provide notice of them to you, unless otherwise required by law. If you disagree with a modification, you must terminate this Agreement. Your continued submission of Receivables to us for us to consider purchasing or participating in after the effective date of a modification constitutes your acceptance of the modification. This Agreement may not otherwise be modified without our prior written consent.
If any provision of this Agreement, other than Paragraphs (h) and (i)(iii) through (iv) of Section 15, is to any extent held invalid or unenforceable, such provision will be excluded to the extent of such invalidity or unenforceability and all other provisions will remain in full force and effect. To the fullest extent possible, the invalid or unenforceable provision will be deemed replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provision. If paragraphs (h) and (i)(iii) through (iv) of Section 15 are to any extent held invalid or unenforceable, then the entire Section 15 will be null and void. If application of this severability provision should materially and adversely affect the economic substance of the transactions contemplated by this Agreement, the party adversely impacted will be entitled to compensation for such adverse impact, provided the reason for the invalidity or unenforceability is not due to the action or inaction of the party seeking compensation.
You may not assign or transfer any of your rights or obligations under this Agreement without our prior written consent, and any such assignment or transfer or attempted assignment or transfer by you without our prior written consent is and will be null and void. We may assign or transfer any of our rights or obligations under this Agreement without your consent. The provisions of this Agreement will inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
The intention of the parties is that there are no third-party beneficiaries of this Agreement.
This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understandings, both written and oral, with respect to the subject matter of this Agreement.
Our failure to exercise or enforce any right or provision of this Agreement will not be considered a waiver.
Relationship of the Parties
Nothing in this Agreement will be construed to imply a joint venture, partnership, or agency (except as provided in Section 3) relationship between the parties.
22. Defined Terms
- “Account Debtor” means a business entity, association, or any other similar organization to which you provide goods, property, or services and which is obligated on a Receivable.
- “ACH” means an Automated Clearing House transaction processed on the network sponsored by the National Automated Clearing House Association.
- “Adjustment Amount” means (i) with respect to a Purchased Receivable, the amount of the reduction (i.e., the amount no longer owed by Account Debtor) to the Receivable in relation to a Receivable Credit, plus the related Discount, or (ii) with respect to a Participated Receivable, the amount of the reduction (i.e., the amount no longer owed by Account Debtor) to the Receivable in relation to a Receivable Credit multiplied by the related Participation Percentage, plus the related Discount.
- “Agreement” means this Receivables Purchase and Participation Agreement.
- “Claim” means, for purposes of Section 15, any claim, dispute, or controversy arising under this Agreement, or the interpretation, performance, or breach of this Agreement, including but not limited to (i) the offer for sale and the acceptance for purchase of or participation in Receivables; (ii) any transactions effected pursuant to this Agreement; (iii) provisions of, modification of, or addition of provisions to this Agreement; (iv) collection of your obligations arising from this Agreement; (v) advertisements, promotions, or oral or written statements relating to this Agreement or any transactions between the parties pursuant to this Agreement; (vi) disputes between the parties and their parent companies, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, contractors, employees, officers, directors, or representatives arising from any transaction between the parties pursuant to this Agreement; (vii) disputes regarding the validity, enforceability, or scope of Section 15 or this Agreement; or (viii) this Agreement.
- “Discount” means the amount that we charge you to purchase or participate in a Receivable.
- “Dispute” means a situation in which Account Debtor questions any goods, property, or services underlying a Receivable and is unwilling to pay the Receivable or a portion of the Receivable, or otherwise asserts any set-off, defense, claim, counterclaim, dispute, deduction, discount, allowance, right of return, right of recoupment, or warranty claim relating to such goods, property, or services. Disputes between Account Debtor and you may arise for many reasons, including: (i) goods, property, or services were not provided as agreed or contracted; (ii) cancellations and returns; (iii) damaged or defective goods, property, or services; (iv) goods or property not received or services not performed; (v) dissatisfaction with goods, property, or services provided; and (vi) billing errors.
- “include” or “including” means without limitation by reason of enumeration.
- “JAMS” means the Judicial Arbitration and Mediation Services or its successor.
- “Losses” means any claims, causes of action, liabilities, losses, damages, settlements, penalties, fines, forfeitures, fees (including legal, expert witness, and accounting fees), costs, and expenses.
- “Participated Receivable” means any Receivable in which we participate by purchasing a Participation.
- “Participation” means an undivided participating interest equal to the Participation Percentage in any payments and other amounts received on a Receivable.
- “Participation Percentage” means the percentage of a Receivable designated by you, and subject to any limits on Participation Percentages set by us from time to time in our sole discretion (e.g., the Participation Percentage must not be less than 80% for certain types of Receivables).
- “Purchase Price” means (i) with respect to a Purchased Receivable, the face (gross) amount of the Receivable minus the Discount; and (ii) with respect to a Participation, the Participation Percentage multiplied by the face (gross) amount of the Participated Receivable, minus the Discount. Any discounts, deductions, credits, allowances, taxes, assessments, or similar charges resulting in a reduction in the face (gross) amount of a Receivable (e.g., an early payment discount) will be deemed Receivable Credits and will be treated as such pursuant to the terms of this Agreement.
- “Purchased Receivable” means a Receivable we purchase from you by paying the Purchase Price.
- “Qualified Account Debtor” means an Account Debtor whose Receivable due is eligible, as determined by us in our sole discretion, for consideration for purchase or participation by us. We may qualify or disqualify any Account Debtor’s status as a Qualified Account Debtor at any time in our sole discretion and without prior notice to you.
- “Repurchase Event” means, with respect to a Purchased Receivable or Participation, (i) any breach by you of any of your representations, warranties, covenants, or agreements in this Agreement, including those in Section 6, related to the Purchased Receivable or Participation; or (ii) any failure to resolve a Dispute within 90 days from the related Receivable’s due date.
- “Repurchase Price” means (i) (A) with respect to a Purchased Receivable, the Purchase Price paid minus any amounts received by us on such Purchased Receivable, or (B) with respect to a Participation, the Purchase Price paid minus any amounts received by us on such Participated Receivable multiplied by the related Participation Percentage; plus (ii) any losses, damages, penalties, fines, fees (including legal, expert witness, and accounting fees), costs, and expenses incurred by us relating to the Receivable, including costs of enforcing any repurchase rights.
- “Receivable” means the right to payment owed to you by an Account Debtor arising out of products, property, or services you have provided to such Account Debtor or to its customers and any other related rights. Receivables and Participations purchased by us also include any related goods, invoices, accounts (including accounts receivable), equipment, inventory, contract rights or rights to payment of money, leases, license agreements, franchise agreements, general intangibles, commercial tort claims, documents, instruments (including any promissory notes), chattel paper (whether tangible or electronic), cash, deposit accounts, certificates of deposit, fixtures, letters of credit rights (whether or not the letter of credit is evidenced by a writing), securities, and all other investment property, supporting obligations, and financial assets, whether now owned or hereafter acquired, wherever located; and all of your books and records relating to the foregoing, and any and all claims, rights, and interests in any of the foregoing and all substitutions for, additions, attachments, accessories, accessions, and improvements to and replacements, products, proceeds, and insurance proceeds of any or all of the foregoing.
- “Receivable Credit” means a reduction in the value of a Receivable as the result of your action or decision. Receivable Credits may be for the full or partial amount of a Receivable, such that an amount is no longer owed by an Account Debtor. You may process a Receivable Credit for many reasons, including: (i) Account Debtor returns products to you in accordance with your return policy or you otherwise accept a return; (i) Account Debtor cancels a recurring order with you, followed by a subsequent return of the products, and the cancellation is undisputed; (iii) Account Debtor notifies you of damaged merchandise, which is undisputed; (iv) you agree to provide Account Debtor a discount for any reason following your issuance of an invoice or other evidence of a payment obligation to an Account Debtor, including early payment; (v) you decide to settle a dispute by processing a full or partial refund; (vi) you decide to avoid a charge-off being processed on Account Debtor with whom you have had a long-standing relationship; and (vii) any other allowance made by you that reduces the amount of a Receivable for which you have already received a Purchase Price from us.
- “Rules” has the meaning provided in Section 15(c).
- “Schedule” means a document, in the form attached to this Agreement as Exhibit A or in any other form and containing any other information that we specify in our sole discretion, that identifies the Receivables that accrued to you during a particular time period and that you wish for us to purchase or participate in.
- “Settlement Account” means your business demand account at a depository institution, which is able to transact and process ACH debits and credits.
- “Wave Account” means you administrative account on the Wave Platform.
- “Wave Platform” means the suite of business, financial, and accounting products and services offered by Wave Financial USA Inc. and its affiliates.
- “We,” “our,” “us,” and “Purchaser” mean Wave Financial USA Inc., a Delaware corporation.
- “You,” “your,” and “Seller” mean the business set forth on the signature page to this Agreement.