These Accounts Receivable Purchase and Security Agreement Terms and Conditions (referred to hereafter as “Factoring Terms and Conditions”) apply to agreements between Clients and England Carrier Services, LLC (“ECS”), PO Box 27566, Salt Lake City, Utah 84127-0566 and have been incorporated by reference into Accounts Receivable Purchase and Security Agreements (“Agreement”) between Clients and ECS. These Factoring Terms and Conditions are subject to amendment and modification by ECS at any time and such modifications and amendments will take effect on the effective date thereof as stated herein. Client is that person/entity identified in the Agreement as “Client.” For greater certainty, unless the context requires otherwise, references to the Agreement in these Factoring Terms and Conditions shall include these Factoring Terms and Conditions.
Terms defined in the singular shall have the same meaning when used in the plural and vice versa. Terms defined in the UCC shall have the meanings set forth in the UCC, except as otherwise defined herein. As used herein, the term:
“Acceptable Account” means an Account of Client conforming to the representations, warranties, and requirements of Section 13, Acceptable Accounts.
“Account Debtor” means any person or entity obligated for payment of an Account.
“Account Due Date” means that period of days stated in the definition of “Account Due Date” in the Agreement.
“Advance” means an advance of any portion of the Purchase Price to or on behalf of Client.
“Advance Rate” means the “Advance Rate” stated in the Agreement, including, but not limited to any variations in rates depending upon Client’s establishment and maintenance of any required Reserve account with ECS in an amount(s) set forth in the Agreement.
“Agreement” means the Accounts Receivable Purchase and Security Agreement, together with any amendments, addenda, and modifications entered into between ECS and Client.
“Banking Business Day” means any day not a Saturday, Sunday, or legal bank holiday in the state in which ECS’s bank is located.
“Chargeback Account” means an outstanding Purchased Account which (i) is past the Account Due Date, (ii) is determined by ECS to no longer be an Acceptable Account, (iii) is declared by ECS pursuant to Section 24 hereof to be a Chargeback Account or (iv) otherwise becomes a Chargeback Account pursuant to the Agreement or these Factoring Terms and Conditions.
“Client” means that person or entity identified as “Client” in the Agreement, and its/his/her heirs, executors, administrators, successors and assigns.
“Collateral” means the “Collateral” described in the Agreement.
“Collected Payments” means collections and payments received by ECS on Accounts of Client, less all interest, Fees and Charges, amounts due and payable to ECS by Client, deductions and setoffs. Credits for Collected Payments shall be provisional and subject to final payment and collection of the deposited item and amount.
“Default Rate” means a rate equivalent to a simple rate of eighteen percent (18%) per annum.
“Discount” shall have the meaning and be the rate(s) set forth in Section 6, Discount, Fees and Charges of the Agreement.
“EL” means the England Logistics, Inc., a Utah corporation.
“EL Invoice” means an invoice owing by EL.
“ECS” means England Carrier Services, LLC, a Utah limited liability company, its successors and assigns.
“ECS Fuel Card” means any account card issued to Client by ECS pursuant to an Agreement for Issuance of ECS Fuel Cards between ECS and Client.
“Event of Default” shall have the meaning set forth in Section 24, Default and Remedies.
“Fees and Charges” means the Invoice Processing Fees, the Supplemental Fee, and the Other Charges as the same are defined and set forth in the Agreement.
“Contract Term” shall have the meaning and be for the term set forth in the Agreement and thereafter automatically renewing for successive periods of one (1) year each commencing upon completion of each prior Contract Term, unless otherwise provided in the Agreement.
“hereof,” “herein,” “hereby,” “hereunder,” and similar terms refer to the Agreement and these Factoring Terms and Conditions as a whole and not to any particular provision thereof.
“Invoice Creation Fee” shall have the meaning set forth in the Agreement. The Invoice Creation Fee shall be due and payable upon purchase of the Account.
“Invoice Processing Fee” shall have the meaning set forth in the Agreement for each invoice that is correctly submitted through the ECS Factoring web portal. A correct invoice includes all of the necessary paperwork including Rate Confirmation, Bill of Lading, unique invoice to the debtor which includes an Assignment Notice to pay ECS and an accurate Schedule of Accounts report.
“Maximum Credit Line” shall mean the amount set forth as such in the Agreement or such other amount as may be determined from time to time by ECS in its sole discretion.
“Monthly Minimum” shall mean the amount set forth as such in the Agreement.
“Other Charges” means the fees and charges that may be assessed as set forth in the Agreement. Absent specific and express language to the contrary set forth in the Agreement, beginning April 15, 2024, the term “Other Charges” includes: a) Any Payment Conversion Fees; b) Fifteen dollars ($15.00) for each wire transfer or other same day transfer of the Purchase Price or transfer of any other amount to Client’s bank (or other non-ECS account); c) Three dollars ($3.00) for each ACH or other electronic transaction (credit or debit) to Client’s bank; and, d) Zero dollars ($0.00) load fee to ECS fuel account. Such fees and charges may be adjusted by ECS at any time to reflect changes in the fees and charges incurred by ECS in providing such services. “Other Charges” also includes all other charges and fees which may be charged by ECS pursuant to the Agreement or these Terms and Conditions, other than the Origination Fees, Invoice Processing Fees, and Supplemental Fee.
“Outstanding Advances” means Advances for which ECS has not received Collected Payments in full and includes Advances against Chargeback Accounts for which Collected Payments in full have not been received and the full re-purchase price has not been paid.
“Overadvance” means (a) the amount by which the Outstanding Advances exceed the Maximum Credit Line, or (b) the amount by which the Outstanding Advances exceed Purchased Accounts which are not Chargeback Accounts multiplied by the Advance Rate.
“Payment Conversion Fee” shall have the meaning set forth in the Agreement.
“person” means and includes all natural persons, corporations, limited partnerships, general partnerships, joint stock companies, limited liability companies, joint ventures, associations, companies, trusts, and all federal (U.S. or Canada), state, provincial and territorial governments and agencies or regulatory authorities and political subdivisions thereof, or any other entity.
“Purchase Price” of an Account other than an EL Invoice or of an EL Invoice shall have the meaning set forth in the Agreement.
“Purchased Account” means an Account that has been purchased by ECS pursuant to Section 4, Purchase of Accounts of the Agreement.
“Reserve” shall have the meaning set forth in the Agreement.
“Serviced Account” means an Account which is not a Purchased Account but is subject to Section 12, Collection Procedures set forth below and pursuant to Section 2, Purchase of Accounts of these Factoring Terms and Conditions.
“Settlement Date” shall have the meaning set forth in the Agreement.
“Supplemental Fee” shall have the meaning set forth in the Agreement.
“UCC” means the Uniform Commercial Code, as adopted now or in the future in the State of Utah.
Client shall offer all Accounts, including EL Invoices, to ECS for purchase. Client shall submit to ECS a Schedule of Accounts and Bill of Sale, copies of the invoices listed on the Schedule of Accounts and Bill of Sale, the original Bill of Lading, supporting documentation for such invoices as requested by ECS, and such other documentation as required by ECS. ECS shall notify Client which Accounts are purchased by providing reports to Client.
ECS may require that any Accounts which are not purchased be Serviced Accounts.
ECS may purchase from Client such Acceptable Accounts as ECS elects. All purchases shall be subject to these Factoring Terms and Conditions and the terms and provisions of the Agreement. THE OBLIGATION OF ECS TO PURCHASE ACCOUNTS FROM CLIENT IS DISCRETIONARY AND ECS SHALL HAVE NO OBLIGATION TO PURCHASE ANY ACCOUNT FROM CLIENT, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE FACTORING TERMS AND CONDITIONS OR IN THE AGREEMENT, ECS may decline to purchase any Account submitted by Client for any reason or for no reason, without notice, regardless of any course of conduct or past purchases of Accounts by ECS. Each purchase by ECS shall be a true purchase with transfer of all legal and equitable title and shall not be deemed to be a loan arrangement or secured transaction. Client shall thereafter have no right, title or interest in or to Purchased Accounts. Client shall make appropriate entries on its books and records disclosing the sale of Purchased Accounts to ECS.
ECS shall be the sole and exclusive purchaser of Client’s Accounts. Client will not sell, factor or otherwise finance its Accounts and shall not grant any other security interest in its Accounts.
The Purchase Price shall be payable as follows: (a) For Accounts which are not EL Invoices, (i) an amount equal to the face amount of the Account multiplied by the Advance Rate shall be payable upon purchase of the Account by ECS, and (ii) the balance of the Purchase Price shall be payable after receipt of Collected Payments in full for the Purchased Account or payment in full of the re-purchase price of a Chargeback Account, such balance to be paid on the next upcoming Settlement Date; (b) For EL Invoices, the Purchase Price shall be payable upon purchase of the Account by ECS.
Notwithstanding anything to the contrary in the Agreement or in these Factoring Terms and Conditions, ECS shall not be obligated to make any Advance if, after making the Advance, the amount of all Outstanding Advances will exceed the Maximum Credit Line.
Collected Payments on Serviced Accounts shall be paid to Client on the next Settlement Date.
Payment shall be made by loading credit onto Client’s ECS Fuel Card, or by wire transfer or ACH (or other electronic transfer) to Client’s bank, as selected by Client, or as otherwise agreed between ECS and Client.
Each Purchased Account which is not an EL Invoice shall be charged and purchased at a Discount at the rates set forth in the Agreement based upon the number of days from the date of purchase by ECS until receipt of Collected Funds as set forth in the Agreement
In addition, Client shall pay ECS the Fees and Charges. The Invoice Processing Fees are for collection of the Accounts and administration of this Agreement. The Invoice Processing Fees are not intended to be and shall not be construed to be interest.
The Discount and the Fees and Charges may be deducted from Advances or from Collected Payments.
If a Purchased Account other than an EL Invoice is not paid in full by the Account Due Date, or if at any time ECS determines, or the terms of the Agreement provide, that a Purchased Account is no longer an Acceptable Account, the Purchased Account shall thereupon automatically be a Chargeback Account without the need for any notice or any other action by ECS.
Unless otherwise agreed between Client and ECS, Client shall immediately re-purchase all Chargeback Accounts by paying ECS the full outstanding face amount owing on the Chargeback Account.
Interest shall accrue on Chargeback Accounts at the Default Rate, before and after default and judgment, until the re-purchase amount is paid in full.
If at any time an Overadvance exists, Client shall immediately make payment to ECS of an amount equal to the Overadvance. If such payment is not immediately made, interest shall accrue on the Overadvance at the Default Rate before and after default and judgment.
As security for the payment of obligations of Client under the Agreement and these Factoring Terms and Conditions, ECS may require Client to establish and maintain the Reserve in the amount set forth in the Agreement or such other amount as deemed appropriate by ECS in its sole discretion. ECS may fund the Reserve by withholding amounts owing to Client for Advances or deducting amounts from Collected Payments.
Upon non-renewal of the Contract Term or termination of the right of Client to submit Accounts to ECS as provided in Section 17, Renewal of Contract Term and Termination of Agreement, and payment of all amounts owing to ECS by Client, any balance of the Reserve shall be paid to Client, provided that if ECS has reasonable grounds to believe that any collections or other payments received by ECS may be dishonored, voided, or preferential, or claims may be made against ECS for which Client would be liable, ECS may continue to hold the Reserve so long as such matters are outstanding and unresolved.
ECS shall be free to use the Reserve as working capital or as ECS otherwise determines. ECS shall have no obligation to segregate, not commingle, or otherwise account for the use of the Reserve. Client shall not be entitled to any interest on the Reserve. The Reserve shall be a debt owed to Client by ECS, payable in accordance with the terms and conditions of these Factoring Terms and Conditions and the Agreement. Amounts owing to ECS by Client may be reflected as a negative balance in Client’s Reserve account; and, in such case, such negative Reserve balance shall be immediately due and owing to ECS.
ECS may apply payments and recoveries first to Fees and Charges, second to outstanding and accrued interest, third to Outstanding Advances and fourth to any other amounts payable to ECS.
As to all amounts owing to ECS by Client, ECS may (i) deduct such amount from Collected Payments received on Accounts, (ii) set off and deduct such amount against Advances or any amount owing by ECS to Client, (iii) demand payment from Client whereupon Client shall immediately pay such amount to ECS, or (iv) exercise any combination of the alternatives set forth in this Section or available under the Agreement, these Factoring Terms and Conditions, at law, or in equity.
It is the intent of the parties to comply with any usury law applicable to the Agreement and these Factoring Terms and Conditions and to all amounts owing pursuant thereto. Accordingly, it is understood and agreed that in no event and upon no contingency shall Client or any guarantor be required to pay interest in excess of the rate allowed by any laws of any jurisdiction which are determined to be applicable and governing. The intention of the parties being to conform strictly to any applicable usury laws, the Agreement and these Factoring Terms and Conditions shall be held to be subject to reduction to the amount allowed under any applicable and governing usury laws as now or hereafter construed by the courts having jurisdiction. In the event ECS receives any interest under the Agreement or these Factoring Terms and Conditions in excess of any highest permissible rate under any applicable and governing law, such excess interest (including simple interest thereon at the highest permissible rate which is applicable and governing) shall be promptly applied to the amounts owing by Client hereunder and then to Outstanding Advances. To the extent such excess interest is greater than such amounts, ECS shall promptly remit such overage to Client.
Upon request, which request may be made as frequently as determined by ECS, Client will promptly submit to ECS a current Account Debtor list, which shall include the name, address, contact person name, phone number and fax number for each active Account Debtor and such other records and reports concerning its Accounts, the Collateral, and operations as may be requested by ECS.
Client shall, at any reasonable time and from time to time, permit ECS or any representative of ECS to conduct field audits, examine, audit, and make copies of and extracts from the records and books of, and visit and inspect the Collateral, properties and assets of, Client, and to discuss the affairs, finances, and Accounts of Client with any of Client’s officers, directors, and partners and with Client’s independent accountants.
An Acceptable Account must meet all of the following requirements and conditions unless waived in writing by ECS.
Client hereby grants ECS a security interest in the Collateral. Client and ECS acknowledge their mutual intent that all security interests contemplated herein are given as a contemporaneous exchange for new value to Client, regardless of when Advances to Client are actually made or when the Collateral is acquired.
The Collateral shall secure all of Client’s present and future debts, obligations, and liabilities of whatever nature to ECS, including, without limitation, (a) all obligations of Client under the Agreement and these Factoring Terms and Conditions, (b) all obligations of Client under agreements to provide ECS Fuel Cards, (c) all obligations of Client under any fuel purchase program and/or tire purchase and service program, and (d) all indebtedness, obligations and liabilities of Client under transactions in respect of which the documents evidencing any indebtedness, obligations, and liabilities of Client refer to this grant of security interest as providing security therefor.
Client’s obligations under the Agreement and these Terms and Conditions may also be secured by other collateral as may be evidenced by other documentation apart from the Agreement and these Terms and Conditions.
Client represents, warrants and covenants that:
Client represents, warrants, and covenants as follows.
Each Contract Term shall automatically renew for an additional Contract Term unless Client or ECS provides written notice of non-renewal at least thirty (30) days prior to the end of the current Contract Term. If Client has given written notice of non-renewal as provided for herein, but nonetheless tenders invoices for purchase to ECS thereafter, Client’s notice of non-renewal will be deemed withdrawn and the Contract Term and the Agreement will be conclusively deemed to have been renewed for an additional Contract Term.
ECS may terminate Client’s right to submit Accounts to ECS at any time upon thirty (30) days written notice.
Upon such non-renewal or termination, all other terms and provisions of the Agreement and these Factoring Terms and Conditions, including, without limitation, the security interests granted in favor of ECS, shall remain in full force and effect until all amounts owing to ECS under the Agreement have been finally paid in full, except that Client shall be excused from the covenants herein providing that ECS shall be the sole and exclusive purchaser of Client’s Accounts.
If Client elects to terminate a Contract Term Period at any time other than the last day of a Contract Term or if ECS elects to terminate Client’s right to submit Accounts to ECS following an Event of Default, Client shall pay ECS the Supplemental Fee for the remainder of the Contract Term. The Supplemental Fee shall be due and payable in full upon such termination.
Upon expiration of the final Contract Term or any other termination, all outstanding Purchased Accounts will, at the election of ECS, immediately be Chargeback Accounts and all amounts owing to ECS by Client pursuant to the Agreement and these Factoring Terms and Conditions shall, without notice of such election, accelerate and become immediately due and payable in full, along with interest accruing at the Default Rate, before and after default and judgment.
ECS may, in its sole discretion, elect to discharge any security interest, lien, trust claim or other encumbrance upon any Accounts or any Collateral, elect to pay any subcontractor, vendor, materialman, laborer, or other person to whom Client is obligated, whether or not any mechanic’s lien or other encumbrance or claim has been asserted, and elect to pay any insurance charges payable by Client or provide insurance as required herein if Client fails to do so. Any such payments and all expenses incurred in connection therewith shall be immediately due and payable by Client to ECS. ECS shall have no obligation to discharge any such security interest, lien, trust claim or other encumbrance, pay any such person, pay such insurance charges or provide such insurance.
As set forth in the Agreement, Client has made and appointed ECS, and its designees, as Client’s true and lawful attorneys-in-fact, with full power of substitution, with full power to endorse the name of Client upon any checks or other forms of payment on Accounts and to effect the deposit and collection thereof. Such power of attorney is irrevocable and coupled with an interest. Such power may be exercised at any time. Client has made, constituted appointed ECS, and its designees, as Client’s true and lawful attorneys in fact, with full power of substitution, such power to be exercised only upon the occurrence of an Event of Default, to: (a) receive, open, and dispose of all mail addressed to Client; (b) cause mail relating to Accounts of Client to be delivered to a designated address of ECS where ECS may open all such mail and remove therefrom any payment of such Accounts; and (c) do any and all other things necessary or proper to carry out the intent of the Agreement and these Factoring Terms and Conditions and to perfect and protect the rights of ECS created under the Agreement and these Factoring Terms and Conditions. This power of attorney is irrevocable and coupled with an interest. Exercise of any of the foregoing powers shall be in the sole discretion of ECS without any duty to do so.
Client hereby consents to ECS disclosing to any financial institution, lender or investor providing financing or capital for ECS, or to any prospective transferee, assignee or participant of any interest of ECS in, to or under this Agreement, any and all information, knowledge, reports and records, including, without limitation, financial statements, concerning Client or any guarantor.
In the event Client fails to pay any amount owing to ECS when due, Client agrees to pay interest on such amount from the due date until paid, both before and after judgment, at the Default Rate.
The Agreement and these Factoring Terms and Conditions are made for the sole and exclusive benefit of ECS and Client and is not intended to benefit any third party. No such third party may claim any right or benefit or seek to enforce any term or provision of the Agreement or any of these Factoring Terms and Conditions.
CLIENT AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS ECS AND EACH OF ITS MEMBERS, OFFICERS, MANAGERS, DIRECTORS, EMPLOYEES AND AGENTS (“THE ECS INDEMNIFIED PARTIES”) FOR AND FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, AND CAUSES OF ACTION WHICH MAY BE ASSERTED AGAINST ECS AS A RESULT OF OR IN CONNECTIONS WITH ANY OF CLIENT’S ACTIONS, INACTIONS, NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS ASSERTED AGAINST ECS THAT ARISE OUT OF OR RELATE TO CLIENT’S OPERATIONS AS A MOTOR CARRIER, BROKER, FREIGHT FORWARDER OR OTHERWISE AND INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR PROPERTY DAMAGE, BODILY INJURY AND/OR WRONGFUL DEATH ARISING OR RELATING TO CLIENT’S OPERATIONS AS A MOTOR CARRIER, BROKER, FREIGHT FORWARDER OR OTHERWISE AND TO FURTHER INDEMNIFY THE ECS INDEMNIFIED PARTIES FOR ANY LIABILITIES AND DAMAGES WHICH MAY BE AWARDED AGAINST ANY OF THE ECS INDEMNIFIED PARTIES, AND FOR ALL REASONABLE ATTORNEYS’ FEES, LEGAL EXPENSES AND OTHER EXPENSES, ON A FULL INDEMNITY BASIS, INCURRED IN DEFENDING SUCH CLAIMS, ARISING FROM OR RELATING IN ANY MANNER TO THE PURCHASE, ASSIGNMENT AND/OR COLLECTION OF ACCOUNTS PURSUANT TO THESE FACTORING TERMS AND CONDITIONS OR THE AGREEMENT OR OTHERWISE RELATING TO CLIENT’S OPERATIONS AS A MOTOR CARRIER, BROKER, FREIGHT FORWARDER OR OTHERWISE, EXCLUDING CLAIMS BASED ON THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ECS. ECS SHALL HAVE SOLE AND COMPLETE CONTROL OF THE DEFENSE OF ANY SUCH CLAIMS, AND IS HEREBY GIVEN AUTHORITY TO SETTLE OR OTHERWISE COMPROMISE ANY SUCH CLAIMS AS ECS, IN GOOD FAITH, DETERMINES SHALL BE IN ITS BEST INTERESTS.
Time is of the essence of the Agreement and these Factoring Terms and Conditions. The occurrence of any of the following events shall constitute a default under the Agreement and these Factoring Terms and Conditions and be and will be deemed to be an “Event of Default”:
Waiver of any Event of Default shall not constitute a waiver of any subsequent Event of Default.
Upon the occurrence of any Event of Default and at any time thereafter, at the election of ECS and without notice of such election, ECS may immediately terminate the right of Client to submit Accounts to ECS, declare any or all outstanding Purchased Accounts to be Chargeback Accounts, and all obligations of Client to ECS shall accelerate and become immediately due and payable in full and ECS shall have all rights and remedies created by or arising from the Agreement or from these Factoring Terms and Conditions and the following rights and remedies, in addition to all other rights and remedies existing at law, in equity, or by statute:
Client and any guarantors shall be liable for all deficiencies owing on any obligations secured by the Collateral after liquidation of the Collateral.
Upon occurrence of an Event of Default, the interest rate on obligations of Client owing to ECS shall be increased to the Default Rate. After the occurrence of an Event of Default, ECS shall retain the exclusive right to collect outstanding Chargeback Accounts, regardless of whether any Chargeback Account has been repurchased by Client, until all obligations owing to ECS by Client have been paid in full.
The rights and remedies herein conferred are cumulative and not exclusive of any other rights or remedies and shall be in addition to every other right, power and remedy herein specifically granted or existing at law, in equity, or by statute which ECS might otherwise have and may be exercised from time to time and as often and in such order as may be deemed expedient by ECS. No delay or omission by ECS in the exercise of any such right, power or remedy or in the pursuance of any remedy shall impair any such right, power or remedy or be construed to be a waiver of any Event of Default or to be an acquiescence therein.
Client shall pay all reasonable expenses of ECS relating to the negotiation, documentation, and administration of the Agreement and/or these Factoring Terms and Conditions, including, without limitation, title insurance, recording fees, filing fees, fees of collection services, reasonable attorneys’ fees and legal expenses, returned check fees, photocopies, postage, audit and field examination fees and costs, inspection fees, wire transfer fees, and overnight delivery expenses, whether incurred in making Advances, in future amendments or modifications to the Agreement and/or these Factoring Terms and Conditions, or in ongoing administration of the Agreement.
Upon occurrence of an Event of Default, Client agrees to pay all costs and expenses, including reasonable attorneys’ fees and legal expenses on a full indemnity basis, incurred by ECS in enforcing or exercising any remedies under the Agreement, these Factoring Terms and Conditions and/or any other rights and remedies.
Client agrees to pay all expenses, including reasonable attorneys’ fees and legal expenses on a full indemnity basis, incurred by ECS in any bankruptcy or insolvency proceedings of any type involving Client, any guarantor, the Agreement, these Factoring Terms and Conditions, the Purchased Accounts, the Serviced Accounts, or the Collateral, including, without limitation, expenses incurred in modifying or lifting the automatic stay, determining adequate protection, use of cash collateral, rejection or assumption of the Agreement or relating to any plan of reorganization.
Client covenants that it will notify ECS of any voluntary or involuntary bankruptcy petition or proceedings under the United States Bankruptcy Code or under any Canadian bankruptcy or insolvency legislation filed by or against Client or any guarantor, or any assignment for the benefit of creditors by Client or any guarantor, within twenty-four (24) hours of any such filing or assignment. Failure to notify ECS of any such filing or assignment within twenty-four (24) hours shall constitute an Event of Default.
Client acknowledges that the Agreement is a contract to extend financial accommodations to or for the benefit of Client within the meaning of 11 U.S.C. §365(c)(2) and, as such, may not be assumed or assigned. Without limiting the right of ECS to refuse to purchase any Account from Client, Client in particular agrees that ECS shall be under no obligation to purchase any Account or provide any other monies or any financing to Client from and after the filing of any voluntary or involuntary bankruptcy or insolvency petition or other proceedings by or against Client.
ECS and its officers, directors, employees, representatives, agents, and attorneys shall not be liable to Client or any guarantor for lost profits, lost revenues, lost business opportunities, or punitive, incidental, consequential, indirect, special or exemplary damages arising from or in any way relating to the Agreement or these Factoring Terms and Conditions, including without limitation arising from or in any way relating to any breach of contract, tort, or other wrong in connection with the Agreement or these Factoring Terms and Conditions and/or the negotiation, documentation, or administration thereof or hereof or the collection of the Accounts.
In the event ECS is unable to carry out its obligations under the Agreement and/or these Factoring Terms and Conditions due to reasons beyond its reasonable control, it is agreed that the obligations of ECS hereunder shall be suspended during the continuance of such inability, ECS shall not be liable for damages, and Client shall not be entitled to any refund of amounts paid, provided that such cause shall be remedied as far as reasonably possible within a reasonable timeframe.
If the incurring of any debt by Client or the payment of any money or transfer of property to ECS by or on behalf of Client or any guarantor (including collection of any Account) should for any reason subsequently be determined to be “voidable” or “avoidable” in whole or in part within the meaning of any provincial, territorial, state or federal (U.S. or Canada) law (collectively “voidable transfers”), including, without limitation, fraudulent conveyances or preferential transfers under the United States Bankruptcy Code or any other federal (U.S. or Canada), state, provincial or territorial law, and ECS is required to repay or restore any voidable transfers or the amount or any portion thereof, or upon the advice of counsel for ECS is advised to do so, then, as to any such amount or property repaid or restored, including all reasonable costs, expenses, and attorneys’ fees of ECS related thereto, the liability of Client and any guarantor shall automatically be revived, reinstated and restored and shall exist as though the voidable transfers had never been made.
Client and any guarantors shall each be jointly and severally liable for all obligations and liabilities arising under the Agreement, these Factoring Terms and Conditions and the other agreements, documents, obligations, and transactions contemplated by the Agreement.
Any provision of the Agreement or these Factoring Terms and Conditions which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions thereof or hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
All references in the Agreement or these Factoring Terms and Conditions to the singular shall be deemed to include the plural when the context so requires, and vice versa. References in the collective or conjunctive shall also include the disjunctive unless the context otherwise clearly requires a different interpretation. All section headings in the Agreement and these Factoring Terms and Conditions are not to be considered part thereof or hereof, are included solely for convenience of reference and do not define, limit or enlarge the interpretation or construction thereof or hereof.
All notices which are expressly required to be in writing may be mailed, postage prepaid, addressed to the address set forth in the Agreement, or to such other address which is provided in accordance with this Section. Any notice so mailed shall be deemed given three (3) days after mailing. Any notice otherwise delivered shall be deemed given when received by the addressee. Any notice which is not expressly required to be given in writing may be given orally.
All agreements, representations, warranties and covenants made herein or in the Agreement by Client shall survive the execution and delivery of the Agreement and any bankruptcy or insolvency proceedings involving Client and shall continue in effect so long as any obligation to ECS contemplated by the Agreement and/or these Factoring Terms and Conditions is outstanding and unpaid, notwithstanding any termination of the Agreement.
CLIENT HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, WHETHER IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY, ARISING OUT OF OR IN ANY WAY RELATED TO THE AGREEMENT, THESE FACTORING TERMS AND CONDITIONS OR THE PURCHASES AND/OR TRANSACTIONS CONTEMPLATED PURSUANT THERETO OR HERETO.
Client acknowledges that by execution and delivery of the Agreement, Client has transacted business in the State of Utah and Client hereby voluntarily submits and consents to the personal jurisdiction of the state and federal courts located within the State of Utah, and waives any defense to the jurisdiction of the state or federal courts located in the State of Utah as to all matters relating to or arising from the Agreement, these Factoring Terms and Conditions or the purchases and/or transactions contemplated pursuant thereto or hereto.
EXCEPT AS EXPRESSLY AGREED IN WRITING BY ECS, THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH SHALL HAVE SOLE AND EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND CONTROVERSIES ARISING UNDER OR RELATING TO THE AGREEMENT, THESE FACTORING TERMS AND CONDITIONS OR THE PURCHASES AND/OR TRANSACTIONS CONTEMPLATED PURSUANT THERETO OR HERETO. NO LAWSUIT, PROCEEDING, ALTERNATIVE DISPUTE RESOLUTION, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER THE AGREEMENT, THESE FACTORING TERMS AND CONDITIONS OR THE PURCHASES AND/OR TRANSACTIONS CONTEMPLATED PURSUANT THERETO OR HERETO MAY BE COMMENCED OR PROSECUTED BY CLIENT IN ANY OTHER FORUM, EXCEPT AS EXPRESSLY AGREED IN WRITING BY ECS; PROVIDED, HOWEVER, THAT ECS MAY CHOOSE AT ITS SOLE OPTION TO COMMENCE AND PROSECUTE ACTIONS AGAINST CLIENT EITHER IN THE STATE OR FEDERAL COURTS LOCATED WITHIN THE STATE OF UTAH OR IN ANY OTHER JURISDICTION THAT MAY HAVE JURISDICTION OVER CLIENT AND THE SUBJECT MATTER OF SUCH ACTION.
Neither the Agreement, nor any rights of Client under or Client’s interest in the Agreement or these Factoring Terms and Conditions, are assignable or transferable by Client and any such purported assignment or transfer is void. The Agreement and these Factoring Terms and Conditions shall be binding upon and inure to the benefit of ECS and Client and their respective heirs, executors, administrators, successors and permitted assigns. Client acknowledges and agrees that ECS may assign all or any portion of the Agreement, including, without limitation, the interest, rights, benefits and remedies of ECS in and under the Agreement and these Factoring Terms and Conditions, without any assignment of the duties, obligations or liabilities of ECS thereunder or hereunder, and may sell participations in any purchasing of Accounts or other rights under the Agreement or these Factoring Terms and Conditions.
The Agreement and these Factoring Terms and Conditions replace and supersede any and all prior agreement(s) between Client and ECS. The Agreement and these Factoring Terms and Conditions and the documents identified or contemplated therein and herein constitute the entire agreement between ECS and Client as to the subject matter thereof and hereof and may not be altered or amended except by written agreement signed by ECS and Client. No provision thereof or hereof may be waived by ECS except upon written waiver executed by ECS. The Agreement and these Factoring Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Utah and shall be deemed to have been executed by the parties in the State of Utah. The Agreement shall not be deemed to have been entered into until accepted by ECS at its chief executive office in Salt Lake City, Utah and shall be performed by ECS and in Salt Lake City, Utah.
(1) If a Purchased Account is denominated in Canadian dollars, Advances by ECS to Client with respect to such Account, and Client’s payments to ECS with respect to such Account, will be in Canadian dollars.
(2) If a Purchased Account is denominated in U.S. dollars, Advances by ECS to Client with respect to such Account, and Client’s payments to ECS with respect to such Account, will be in U.S. dollars.
(3) Client shall reimburse ECS, on demand, for all fees, charges and other expenses, including currency exchange fees and charges, that ECS may pay or otherwise incur in connection with (i) the purchase with U.S. dollars of any Canadian dollars that ECS pays to Client (or for Client’s credit) pursuant to or in any way relating to the Agreement or (ii) the purchase of U.S. dollars with any amount ECS receives in Canadian dollars from Client, any Account Debtor, any guarantor or any other person pursuant to or any way relating to the Agreement, any Purchased Account, any Collateral (or any other collateral) or any obligation of Client.
(4) Client shall, on demand, indemnify and hold ECS harmless from and against any loss (a “Foreign Exchange Loss”) that ECS may incur or suffer as a result of (i) the purchase by ECS of any amount of Canadian dollars with U.S. dollars for the purpose of enabling ECS to pay such amount to Client (or for Client’s credit) pursuant to or in any way relating to the Agreement, and/or (ii) the purchase by ECS of any amount of U.S. dollars with any amount ECS receives in Canadian dollars from Client, any Account Debtor, any guarantor or any other person pursuant to or in any way relating to the Agreement, any Purchased Account, any Collateral (or any other Collateral) or any obligation of Client and (iii) there having occurred any change in the rate of exchange in relation to U.S. dollars and Canadian dollars on or after the date of the Agreement (and whether before or after termination of the Agreement). In particular, but without in any way limiting the generality of the preceding sentence, Client agrees that, if (x) on any day (the “Purchase Date”), ECS purchases with U.S. dollars an amount of Canadian dollars for the purpose of paying such amount of Canadian dollars to Client in connection with the purchase of an Account pursuant to the Agreement, (y) ECS thereafter receives an amount of Canadian dollars from Client, the Account Debtor under such Account, any guarantor or any other person pursuant to or in any way relating to the Agreement, any Purchased Account, any Collateral (or other collateral) or any obligation of Client and (z) there has occurred a change in the rate of exchange in relation to U.S. dollars and Canadian dollars on or after the Purchase Date, Client will, on demand, pay ECS such additional amount in U.S. dollars as ECS, in its discretion, believes is desirable to help ensure that the amounts so received by ECS, assuming that each such amount received by ECS in Canadian dollars is converted into U.S. dollars at the rate of exchange prevailing on the date so received by ECS, will be sufficient to ensure that ECS will not suffer a Foreign Exchange Loss as a result of such matters or transactions. For the purpose of this Section 37(4), the phrase “rate of exchange” shall mean the rate at which ECS is able, on any particular relevant date, to purchase U.S. dollars with Canadian dollars in accordance with its usual practice at its office in Salt Lake City, Utah.
(5) The records of ECS, including without limitation its records relating to Client’s account with ECS, any of which records ECS may revise or correct from time to time, shall be prima facie evidence of the matters recorded therein and of the currency of Client’s obligations to ECS, absent manifest error.
(6) Except as otherwise expressly provided in the Agreement, all dollar amounts referred to in the Agreement are stated in the lawful currency of Canada.
(7) Client will make payment relative to each amount owing under the Agreement in the currency (the “Original Currency”) in which Client is required to pay such amount. If Client makes payment relative to any such amount to ECS in a currency (the “Other Currency”) other than the Original Currency (whether voluntarily or pursuant to an order or judgment of a court or tribunal of any jurisdiction), such payment will constitute a discharge of the liability of Client under the Agreement in respect of such amount only to the extent of the amount of the Original Currency which ECS is able to purchase in accordance with its usual practice at its office in Salt Lake City, Utah with the amount of the Other Currency it receives on the date of receipt. If the amount of the Original Currency which ECS is able to purchase is less than the amount of such currency originally due to it with respect to the relevant amounts, Client will indemnify and save ECS harmless from and against any loss or damage arising as a result of such deficiency. This indemnity will constitute an obligation separate and independent from the other obligations contained in the Agreement, will give rise to a separate and independent cause of action, will apply irrespective of any indulgence granted by ECS and will continue in full force and effect notwithstanding any judgment or order in respect of any amount due under the Agreement or under any judgment or order, and notwithstanding any termination of the Agreement.
(8) A certificate or statement of ECS setting forth the amount or amounts to be paid to it pursuant to this Section 37, together with a brief calculation thereof, shall be sent to Client and shall be conclusive absent manifest error. In preparing any such certificate or statement, ECS shall be entitled to use averages and make reasonable estimates, shall not be required to match or isolate particular transactions or payments, and may offset against each other any currency losses and gains. Client will pay ECS the amount shown as due by Client on any such certificate or statement within 10 days after it was sent.
Any terms or provisions of the Agreement that are contrary to or inconsistent with the terms and provisions of these Factoring Terms and Conditions shall prevail and take precedent over the terms and provisions contained in these Factoring Terms and Conditions.
Revisions Effective the 1Oth day of January 2021
