TERMS AND CONDITIONS
These Terms and Conditions (as may be hereafter amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Terms”), together with the terms and conditions set forth in the applicable Transaction Document (as defined below) are a contract between each Person (as defined below) who executes a Transaction Document (as defined below) (“Counterparty”, “you” or “your”) and Trust Software, Inc., Delaware corporation, and its affiliates (“Company”, “we”, “us” or “our”). The terms are incorporated in and made a part of the applicable Transaction Document.
Section 1. Definitions. As used in these Terms, the following terms have the meanings specified below:
“AAA” means the American Arbitration Association.
“Account Obligor” means, with respect to any Purchased Receivable, the underlying account debtor and obligor for the payment thereof (which may include Counterparty).
“Advisor” has the meaning set forth in Section 9(b).
“Arbitration Provision” has the meaning set forth in Section 8.
“Business Day” means any day that is not a Saturday, Sunday or other day that is a legal holiday under the laws of the State of New York or is a day on which banking institutions in such state are authorized or required by law to close.
“Change of Control” means (i) any sale, lease, exchange, transfer or other disposition, in one transaction or a series of related transactions, of all or substantially all of the assets of Counterparty, (ii) the consummation of any consolidation or merger of Counterparty in which the equity holders of Counterparty immediately prior to such consolidation or merger do not own a controlling interest in the surviving entity, (iii) the acquisition by any Person or group (other than an existing beneficial owner on the date hereof) of a majority of the voting power or economic ownership of the equity interests of Counterparty or (iv) the liquidation or dissolution of Counterparty. The term “beneficial owner” as used in this definition shall have the meaning ascribed thereto under Rule 13d-3 of the Securities Exchange Act of 1934, as amended.
“Claim” has the meaning set forth in Section 8.
“Company Information” means the terms and conditions of the products and services offered by Company, including these Terms, the Transaction Document and any other documents executed in connection with such agreements or related to such agreements.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, or the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise v ting power, by contract or otherwise.
“Controlling” and “Controlled” have meanings correlative thereto.
“Counterparty Account” has the meaning set forth in Section 7.
“Counterparty Information” means all information received from or on behalf of Counterparty relating to Counterparty’s business, other than any such information that is available to Company on a non-confidential basis prior to disclosure by Counterparty or is otherwise publicly available.
“Debtor Relief Laws” means the Bankruptcy Code of the United States of America, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect.
“Default” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.
“Effective Date” means each date you and Company execute a Transaction Document.
“Event of Default” has the meaning specified in Section 5.
“FAA” means the Federal Arbitration Act, 9 U.S.C. §§ 1-16.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or political subdivision thereof or any entity or officer exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S., a foreign government or any political subdivision of either thereof.
“Material Adverse Effect” means a material adverse effect on (i) the business, assets, properties, liabilities (actual or contingent), prospects, financial condition or results of operations, in each case, of you and your Subsidiaries, taken as a whole, (ii) the material rights and remedies (taken as a whole) of Company under these Terms and the Transaction Document or (iii) your ability to perform your Obligations under these Terms and the Transaction Document.
“Obligations” means all of your obligations to Company, fixed or contingent, arising from time to time under these Terms and the Transaction Document or by operation of law; all of the Account Obligor’s obligations to make payments in full as and when due in respect of the Purchased Receivables sold and assigned by you to Company or as extended by Company (as applicable) hereunder and under the Transaction Document; Company’s costs and expenses, such as attorneys’ and other fees, incurred by Company in any proceeding or collection effort arising under or relating to these Terms and the Transaction Document; and the obligation to reimburse or otherwise indemnify Company for all amounts (if any) recovered from Company on account of payments previously made by Account Obligor on Purchased Receivables sold and assigned to Company hereunder and under the Transaction Document.
“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its bylaws, (b) with respect to any limited partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization or certificate of formation, and its operating agreement or limited liability company agreement and (e) with respect to any other form of entity, such other organizational documents required by local Requirements of Law or customary under the jurisdiction in which such entity is organized to document the formation and governance principles of such type of entity.""“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or any other entity.
“Protected Entity” has the meaning set forth in Section 9(d).
“Purchased Receivable” has the meaning set forth in the Transaction Document.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes, treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such Person or any of its property is subject.
“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of the total voting power of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or other Persons performing similar functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a combination thereof; provided that, in determining the percentage of ownership interests of any Person controlled by another Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding.
“Taxes” means any and all present and future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Transaction Document” means the Accounts Receivable Purchase Agreement or the Extended Payment Terms Agreement, as applicable, between Counterparty and Company, as the same may be executed from time to time and incorporated and made a part of these Terms.""“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New
Section 2. Representations and Warranties. You represent and warrant that:
(a) Organization; Powers. You (i) are (A) duly organized and validly existing and
(B) in good standing (to the extent such concept exists in the relevant jurisdiction) under the laws of your jurisdiction of organization, (ii) have all requisite organizational power and authority to own your property and assets and to carry on your business as now conducted and (iii) are duly qualified to do business in, and are in good standing (to the extent such concept exists in the relevant jurisdiction) in, every jurisdiction where your ownership, lease or operation of properties or conduct of your business requires such qualification except, in each case referred to in this Section 2(a), where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(b) Authorization; Enforceability. Your execution, delivery and performance of the Transaction Document and these Terms are within your corporate or other organizational power"
"and have been duly authorized by all necessary corporate or other organizational action. The Transaction Document has been duly executed and delivered by you and is your legal, valid and binding obligation, enforceable in accordance with its terms.
(c) Governmental Approvals; No Conflicts. Your execution, delivery and performance of the Transaction Document and these Terms (i) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (A) such as have been obtained or made and are in full force and effect and (B) such consents, approvals, registrations, filings or other actions which the failure to obtain or make could not be reasonably expected to have a Material Adverse Effect and (ii) will not violate any (A) of your Organizational Documents or (B) Requirements of Law applicable to you which, in the case of this clause (ii)(B), would reasonably be expected to have a Material Adverse Effect.
(d) Compliance with Laws. You are in compliance with all Requirements of Law applicable to you and your property, except, in each case where the failure to do so, individually or in the aggregate, could not reasonably be expected to result in a Material Adverse Effect.
(e) Solvency. Immediately after the consummation of the transactions under the Transaction Document on the Effective Date, (i) the sum of the debt (including contingent liabilities) of you and your Subsidiaries, taken as a whole, does not exceed the fair value of the assets of you and your Subsidiaries, taken as a whole; (ii) the present fair saleable value of the assets (on a going concern basis) of you and your Subsidiaries, taken as a whole, is not less than the amount that will be required to pay the probable liabilities (including contingent liabilities) of you and your Subsidiaries, taken as a whole, on their debts as they become absolute and matured in accordance with their terms; (iii) the capital of you and your Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of you and your Subsidiaries, taken as a whole, contemplated as of the Effective Date; and (iv) you and your Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in the ordinary course of business. For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liability meets the criteria for accrual under Statement of Financial Accounting Standards No. 5).
(f) Litigation. There are no actions, suits or proceedings by or before any arbitrator or Governmental Authority pending against or, to your knowledge, threatened in writing against you or any of your Subsidiaries which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
(g) No Material Adverse Effect; No Default. Neither you nor any of your Subsidiaries is in default under or with respect to any Contractual Obligation that, either individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect. No Default has occurred and is continuing or would result from the consummation of the transactions contemplated by the Terms and the Transaction Document.
(h) Taxes. You have timely filed or caused to be filed all Tax returns and reports required to have been filed and have paid or caused to be paid all Taxes required to have been paid by you and it that are due and payable, except (i) Taxes (or any requirement to file Tax returns with respect thereto) that are being contested in good faith by appropriate proceedings and for which adequate reserves have been provided in accordance with GAAP or (ii) to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect.
(i) Disclosure. All reports, financial statements, certificates and other information delivered by you, or on your behalf, to us in connection with the transactions contemplated by these Terms and the Transaction Document is, and shall be, true and correct in all material respects and does not, and shall not, omit to state a material fact the omission of which would render such information misleading; provided that, with respect to projected or pro forma financial information, you represent only that such information was prepared in good faith based upon assumptions believed to be reasonable at the time of preparation and delivery (it being understood that such projected information may vary from actual results and that such variances may be material and you acknowledge and agree, however, that any such material difference(s) may be indicative of a Material Adverse Effect).
(j) Valid Business Purpose. You are not a consumer and are entering into these Terms and the Transaction Document for business and commercial purposes and not for personal, family, household or consumer purposes.
(k) Restricted Business. Your business does not operate in a high-risk industry, including, without limitation, the following industries (the examples provided below are not intended to be exhaustive):
(i) cannabis (manufacturers, distributors or dispensaries);
(ii) drug paraphernalia (drug manufacturing or items for drug use);
(iii) adult content (pornography, dating sites or pay-per-view chat);
(iv) gambling (casinos, online gambling or fantasy sports);
(v) financial aggregation (factoring, payment processors or crowdfunding);
(vi) money and legal (bail bonds, collections agencies or adoption services);
(vii) virtual currency (initial coin offerings, digital wallets or video game credits);
(viii) investment and credit (securities brokers, lending instruments or credit repair);
(ix) regulated products (weapons, firearms, tobacco, e-cigarette or prescription drugs);
(x) gift cards;
(xi) counterfeit goods (companies with fake brand name goods or unauthorized resellers);
(xii) multi-level marketing or pyramid schemes;
(xiii) get rich quick (promoting high yield investment opportunities or services);
(xiv) social media activity (sale of Twitter followers, online traffic or YouTube views);
(xv) pseudo pharmaceuticals (nutraceuticals or products making health claims not approved by the FDA); or
(xvi) drug of concern (legal substance that provides the same effect as an illegal drug).
(l) No Bankruptcy. You do not contemplate filing or have filed a petition for bankruptcy protection or other form of reorganization (including, without limitation, an assignment for the benefit of creditors) and there has been no involuntary petition threatened or filed against you. You do not anticipate filing any such bankruptcy petition or other form of reorganization (including, without limitation, an assignment for the benefit of creditors) and do not anticipate that an involuntary petition will be filed against you. You are not currently contemplating bankruptcy or insolvency proceedings.
(m) Maintenance of Business. You do not have any intention to temporarily or permanently close or cease operating your business, in part or in whole, and shall preserve your relationships with those customers, suppliers, licensees, licensors and commercial partners that are material to your business in substantially the same manner as you have prior to the Effective Date.
Section 3. Covenants. In addition to, and not in limitation of, the covenants contained in the Transaction Document, you covenant and agree that until all Obligations (other than unmatured, contingent Obligations for which no claim has been made) under the Transaction Document have been indefeasibly paid in full:
(a) True Sale. For purposes of federal income tax reporting and account, you shall treat the sale and assignment of each Purchased Receivable by you to us as a true sale and assignment of all of your rights and interest in, to and under each such Purchased Receivable.
(b) No Interference. You have not done, and shall not do, anything to impede or otherwise interfere with Company’s collection of any Purchased Receivable and shall not, without Company’s prior written consent, do anything to amend, waive or otherwise modify any deviation from the express terms of any Purchased Receivable sold and assigned to Company.""(c) No Impairment. You will not take any action that would substantially impair or reduce the collection of the Purchased Receivable to satisfy the Obligations under these Terms and the Transaction Document.
(d) No Liens. You will not create, not will you permit to exist, any lien on, security interest in, other encumbrance or adverse claim with respect to any of the Purchased Receivables or any other property purported to have been sold or assigned by you to use hereunder and under the Transaction Document, unless such lien, security interest, other encumbrance or claim is exclusively in favor of Company.
(e) Use of Proceeds. You will not use any amount provided by Company for personal, family or household purposes or make any payments to Company from any consumer account.
(f) Notices of Default or Event of Default. You will furnish to Company prompt written notice of the occurrence of any Default or Event of Default and a summary of the action you are taking or propose to take with respect thereto to remediate such Default or Event of Default.
(g) Preservation of Existence. You will maintain and preserve your legal existence, your rights to transact business and all other rights, licenses, permits, franchises, approvals and privileges necessary or desirable in the normal course of your business and operations and the ownership of your properties.
(h) Nature of Business. You will not change the nature of the business that you conduct from the type of business disclosed to Company on the Effective Date in connection with the Transaction Document.
(i) No Interference with ACH Transactions. You will not terminate your authorization of debits under these Terms and the Transaction Document, stop payment on any debit authorized pursuant to these Terms and the Transaction Document, claim a debit transaction pursuant to these Terms and the Transaction Document is unauthorized or seek a refund, return, chargeback or dispute of a credit card transaction to a payment under these Terms and the Transaction Document.
Section 4. True Sale and Back-Up Security Interest. You and Company intend that each sale and assignment of a Purchased Receivable by you to Company hereunder and under the Transaction Document will constitute a purchase and sale thereof and that none of such sales and assignments be construed as a loan from Company to you. You acknowledge and agree that (i) you have no legal or equitable interest in the Purchased Receivable as established under these Terms and the Transaction Document, (ii) in the event you become a debtor in a case under Title 11 of the United States Code (or otherwise become subject to any receivership, bankruptcy, insolvency, assignment for benefit of creditors or similar law of any jurisdiction), the Purchased Receivable is not property of your estate and (iii) you no longer own or control the Purchased Receivable. However, if notwithstanding such intention, such sales and assignments are construed to be loans (and not purchases and sales), it is the intention of the parties hereto and to the Transaction Document that these Terms and the Transaction Document shall constitute a security agreement under applicable law, and, therefore, in order to secure the payment of the Obligations""to Company in full, you hereby grant to Company a first-priority, perfected security interest in all of your right, title and interest, whether now owned or hereafter acquired, in, to and under the Purchased Receivables and all proceeds thereof.
Section 5. Events of Default. The occurrence of any of the following shall constitute an “Event of Default”:
(a) Failure to Make Payments When Due. Failure by Counterparty to pay any Obligation owed by it when due;
(b) Breach of Representations, Etc. Any representation or warranty made or deemed made by Counterparty under or in connection with these Terms and the Transaction Document shall be untrue in any material respect on or as of the date made or deemed made;
(c) Breach of Certain Covenants. Failure by Counterparty to perform or observe any covenant, term, condition or agreement contained in these Terms or the Transaction Document and such failure continues unremedied for five (5) Business Days after the earlier of (i) written notice by Company to Counterparty or (ii) Counterparty obtaining knowledge of such failure;
(d) Involuntary Bankruptcy; Appointment of Receiver, Etc. An involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of Counterparty or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Counterparty or for a substantial part of its assets, and, in any such case, such proceeding or petition shall continue undismissed for a period of thirty (30) or more days or an order or decree approving or ordering any of the foregoing shall be entered;
(e) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Counterparty shall
(i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in Section 5(d), (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Counterparty or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any such proceeding, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing;
(f) Insolvency. Counterparty is insolvent or is otherwise unable, or admits in writing its inability, to pay its debts as they become due;
(g) Change of Control. The occurrence of a Change of Control;
(h) Invalidity of Terms and Transaction Document. If these Terms and the Transaction Document fail to create, or if Counterparty for any reason ceases to have, a valid undivided first-priority ownership and/or security interest, as applicable, in any Purchased""Receivable sold by Counterparty to Company under these Terms and the Transaction Document; or
(i) Liens. If there is created any lien, garnishment, attachment, encumbrance or other security interest on the Purchased Receivable without the prior written consent of Company.
Section 6. Remedies. If an Event of Default shall have occurred and be continuing, Company shall have the right, by notice to Counterparty, to take any of the following actions, at the same or different times: (a) terminate these Terms and the Transaction Document, (b) declare all Obligations owed by Counterparty to Company due and payable in whole (or in part, in which case any amount not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the amount so declared to be due and payable, together with all fees and other obligations of Counterparty accrued hereunder and under the Transaction Document, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Counterparty and (c) exercise any rights and remedies provided to Company hereunder, under the Transaction Document or at law or equity, including all remedies provided under the UCC.
Section 7. Electronic Fund Transfer Authorization. You irrevocably consent and authorize Company (which includes for the purposes of this authorization, our agents, service providers, successors and assigns) to process and originate electronic fund transfers via ACH or similar network from the Counterparty Account as it may be updated by you from time to time, any substitute account you later specify and/or any other account containing proceeds of the Purchased Receivables (collectively, the “Counterparty Account”) on or after the date the associated Purchased Receivables were sold. You authorize Company, at any time and in Company’s sole discretion, to initiate to Counterparty Account an ACH debit or credit entry in an amount less than $1.00 or an ACH pre-notification entry for the purpose of verifying that ACHs may be successfully credited to or debited from the Counterparty Account. You authorize Company to initiate a single ACH for the combined amounts of different monthly periods (e.g., initiate a single ACH in respect of amounts that were accrued in the two (2) prior monthly periods) or to initiate individual ACHs. You further authorize Company to initiate ACHs to the Counterparty Account for any amounts that come due under the Transaction Document. You also authorize Company to initiate ACH credits or debits to the Counterparty Account to correct any errors you may make in processing a payment. In the event that an ACH is returned unpaid, you authorize Company to reinitiate the ACH until it is paid and to initiate a separate ACH or to add to a reinitiated ACH the amount of any dishonored payment fee that Company charges. You expressly agree that you shall not cancel this authorization or instruct any depository holding any proceeds of the Purchased Receivables that Company has purchased to reject Company’s ACHs. You represent that the Counterparty Account and any substitute account you provide Company is used for business purposes and not for personal, family, household purposes or any other purposes other than business purposes and that you are an authorized signor on the Counterparty Account and any substitute account. You further agree to be bound by the rules and regulations of any applicable payment networks as may be required to effect any of the transactions authorized under this Section 7.
Section 8. Arbitration. Company and Counterparty each elect to resolve any and all claims and disputes relating in any way to these Terms, the Transaction Document or their dealings with one another (“Claims”), except for Claims concerning the validity, scope or enforceability of this provision (this “Arbitration Provision”), through BINDING INDIVIDUAL, NON-CLASS-ACTION""ARBITRATION. This Arbitration Provision is made with respect to transactions involving interstate commerce and shall be governed by the FAA, and not by state law.
(a) Individual Arbitration. Company and Counterparty each understand and agree that by allowing each other to elect to resolve any dispute through individual arbitration, BOTH PARTIES EXPRESSLY WAIVE THE RIGHT TO A COURT OR JURY TRIAL AND NO CLAIM FILED IN COURT WILL BE HEARD BY A JURY OR TAKE PLACE ON AN INDIVIDUAL BASIS. FURTHERMORE, COUNTERPARTY SHALL RESOLVE ANY DISPUTE BY ARBITRATION AND SUCH DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND NOT AS A CLASS ACTION, REPRESENTATIVE ACTION, CLASS ARBITRATION OR ANY SIMILAR SUCH PROCEEDING. The arbitrator(s) may not consolidate more than one party's claims (except Claims by or against one party with respect to these Terms or the Transaction Document involving the parties) and may not preside over any form of a representative or class proceeding.
(b) Arbitration Rules. Arbitration of any dispute under this Arbitration Provision shall be administered by the AAA pursuant to the applicable rules of AAA in effect at the time the arbitration is initiated. Counterparty may contact AAA to obtain information about arbitration, by calling 800-778-7879 or visiting www.adr.org. In the event that AAA is unable or unwilling to administer the arbitration of a dispute, then a dispute may be referred to any other arbitration organization mutually agreed by Company and Counterparty or to an arbitration organization or arbitrator appointed pursuant to section 5 of the FAA. Arbitrations shall be conducted before a single arbitrator. The arbitration shall take place in the federal judicial district that is mutually agreed in writing. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitations and shall be authorized to award any relief that would have been available in court; provided that the arbitrator's authority to resolve claims and make awards is limited to any and all claims between Company and Counterparty except as otherwise specifically stated herein. The decision by the arbitrator shall be final and binding on the parties. Company and Counterparty agree that this Arbitration Provision extends to any other parties involved in any Claims, including, without limitation, to Company’s and Counterparty’s employees, affiliated companies and vendors. In the event of any conflict between this Arbitration Provision and the AAA arbitration rules or the rules of any other arbitration organization or arbitrator, this Arbitration Provision shall govern.
(c) Arbitration Fees and Costs. The arbitration fees shall be borne equally by Company and Counterparty.
(d) Exceptions. Notwithstanding any other provision of these Terms or the Transaction Document, Company and Counterparty agree that this Arbitration Provision does not stop either Company or Counterparty from exercising any lawful rights to seek non-arbitration, self-help remedies. Company and Counterparty agree that each party may seek provisional self-help remedies out of court without waiving the right to arbitrate. Notwithstanding any other provision of these Terms or the Transaction Document, if the foregoing class action waiver and prohibition against class arbitration is determined to be invalid or unenforceable, then the arbitration provision under this Section 8(d), other than such invalid or unenforceable provisions, shall remain in full force and effect.
Section 9. Miscellaneous.
(a) Notices. All notices, requests, consents, demands and other communications hereunder and under the Transaction Document shall be in writing and delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email to the respective parties to the Transaction Document at the following addresses: to Company, at 1207 4th Street, Suite 400A, Santa Monica, CA 90401, Attn: Benjamin Toulotte, email: email@example.com; and to Counterparty, at the address separately provided to Company. Any such communication will become effective only upon receipt thereof.
(b) Confidentiality. Counterparty understands and agrees that the Company Information is proprietary and confidential information of Company. Accordingly, unless disclosure is required by law or court order, Counterparty shall not disclose Company Information to any person other than an attorney, accountant, financial advisor or employee of Counterparty who needs to know such information for the purpose of advising Counterparty (“Advisor”); provided that such Advisor uses such information solely for the purpose of advising Counterparty and is instructed by Counterparty to not disclose Company Information to any person in accordance with the terms of this Section 9(b). Company agrees to maintain the confidentiality of the Counterparty Information (as defined below), and shall not use any such Counterparty Information for competitive purposes, except that Counterparty Information may be disclosed (i) to the extent required or requested by any regulatory authority purporting to have jurisdiction over Company (including any self-regulatory authority), (ii) to Company’s directors, officers, employees and agents, including accountants, legal counsel and other advisors who have a need to know such Counterparty Information (it being understood that the person to whom such disclosure is made will be informed of the confidential nature of such Counterparty Information and instructed to keep such Counterparty Information confidential), (iii) to the extent required by any applicable laws, rules or regulations or by any subpoena or similar legal process, (iv) in connection with the exercise of any remedies hereunder or any action or proceeding relating to these Terms, the Transaction Document or the enforcement of rights hereunder or thereunder, (v) with the written consent of Counterparty, (vi) to the extent it becomes available to Company on a nonconfidential basis from a source or (vii) to the extent it becomes publicly available other than as a result of a breach of this Section 9(b).
(c) Indemnity. You agree to defend, indemnify and hold harmless Company and its officers, directors, employees, members, managers, consultants, Subsidiaries, agents and affiliates from and against any and all losses, claims, damages, liabilities, losses and expenses, including reasonable attorneys’ fees, charges and disbursements, arising out of or in any way connected with: (i) the execution or delivery of the Transaction Document, your performance of your Obligations hereunder or under the Transaction Document or the consummation of the transactions contemplated hereunder or under the Transaction Document, (ii) your violation of any Requirements of Law, (iii) your use of any proceeds from the consummation of the transactions contemplated hereunder or under the Transaction Document, (iv) your violation of any third-party rights, including any intellectual property, publicity, confidentiality or other privacy or property rights or (v) any dispute or issue between you and any third party. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to such matter), and you agree to cooperate with our defense of any such claim.
(d) DISCLAIMER OF WARRANTIES. THIS SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SERVICES, FUNCTIONS AND MATERIALS THEREOF, IS PROVIDED “AS IS” WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, CORRECTNESS, PRECISION, THOROUGHNESS, COMPLETENESS OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS OR IMPLIED. WE DO NOT WARRANT THAT THE SITE OR THE CONTENT, SERVICES, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITE WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN OR IN THE TRANSACTION DOCUMENT. WE ALSO ASSUME NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR PROPERTY (INCLUDING YOUR COMPUTER EQUIPMENT, MOBILE DEVICE OR OTHER PROPERTY) ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITE OR ANY LOSS OF DATA THAT RESULTS FROM THE USE OF THIS SITE. WE AIM TO ENSURE THAT THE INFORMATION POSTED ON THE SITE IS CORRECT AND CURRENT AND RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THIS SITE AT ANY TIME AND WITHOUT ANY PRIOR WARNING.
(e) LIMITATION OF LIABILITY. IN NO EVENT SHALL COMPANY, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, CONSULTANTS, SUBSIDIARIES, AGENTS OR AFFILIATES (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION OR COST OF SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
(f) Force Majeure. Company shall not be liable for any issues or delayed performance caused by circumstances beyond Company’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, epidemics or pandemics, strikes or other labor problems, service provider failures or delays.""(g) Updates to Terms. Company reserves the right to update and amend these Terms at any time. Any change or update will become effective from the moment of its publication on Company’s website.
(h) Amendments and Waivers. Subject to Section 9(g), no modification, amendment, waiver or consent of any provision of these Terms or the Transaction Document will be effective unless it is in writing and signed by Company and Counterparty. No failure to exercise and no delay in exercising, on the part of Company, any right or remedy under these Terms or the Transaction Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy preclude any other or further exercise thereof.
(i) Assignments. You may not transfer or assign these Terms or the Transaction Document or any of your interests, rights or obligations under these Terms or the Transaction Document without the prior written consent of Company. Company reserves the right to transfer or assign these Terms and the Transaction Document or any right or obligations under these Terms and the Transaction Document at any time.
(j) Costs and Expenses. Counterparty shall, within ten (10) days of demand therefor, pay all reasonable costs and expenses incurred by Company (including all fees, charges and disbursements of counsel) in connection with (x) the administration of these Terms and the Transaction Document, (y) any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated) and (z) the enforcement or protection of Company’s rights in connection with these Terms and the Transaction Document.
(k) Counterparts; Integration; Effectiveness; Electronic Execution. The Transaction Document may be signed in one or more counterparts, each of which constitutes an original and all of which when taken together constitute the same agreement. These Terms and the Transaction Document constitute the entire contract among the parties relating to the transactions contemplated hereby and thereby and supersede any and all previous agreements and understandings, oral or written, relating to such transactions. These Terms and the Transaction Document, taken as a whole, shall become effective when (i) the Transaction Document shall have been executed by Company and Counterparty and Company shall have received counterparts thereof that, when taken together, bear the signatures of each of the parties thereto or (ii) Counterparty shall have clicked on the “I Agree” or similar check-box/button on Company’s website, which shall establish acceptance by you of these Terms and the Transaction Document and in which case you agree that you have read the terms and conditions set forth in these Terms and the Transaction Document and accept such terms and conditions. Facsimile signatures and other electronic signatures will be deemed original signatures and each party to the Transaction Document may rely on a facsimile signature or electronic signature as an original for purposes of enforcing these Terms and the Transaction Document. Counterparts may be executed or delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or by other means of “electronic transmission” (as such term is defined under Delaware General Corporation Law §232(c)), and any counterpart so executed or delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. The words “execution,” “signed,” “signature,” and words of similar import in any definitive document shall be deemed to include electronic or""digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000 (15 USC § 7001 et seq.), the Electronic Signatures and Records Act of 1999 (NY State Technology Law §§ 301-309), or any other similar state laws based on the Uniform Electronic Transactions Act.
(l) Survival. The obligations in Section 8 (Arbitration) and Section 9 (Miscellaneous) of these Terms shall survive the termination of the Transaction Document. All representations, warranties and covenants herein and in the Transaction Document will survive the execution and delivery of the Transaction Document and will continue in full force until all obligations under the Transaction Document have been satisfied in full and the Transaction Document is as a result terminated.
(m) Severability. In case any of the provisions in these Terms or the Transaction Document are found to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, the validity, legality and enforceability of any other provision contained herein will not in any way be affected or impaired, and that the parties acknowledge that their intent is to modify such provision to the maximum extent enforceable under applicable law and the remainder of these Terms and the Transaction Document will continue in full force and effect. In the event that a court recharacterizes any amounts owed to Company as interest and determines that Company has charged or received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder shall automatically be reduced to the maximum rate permitted by applicable law and Company shall promptly refund to Counterparty any amount received by Counterparty in excess of the maximum lawful rate under applicable law.
(n) Headings. The headings in these Terms and the Transaction Document are for reference only and shall not affect the interpretation of these Terms or the Transaction Document.
(o) Governing Law. Subject to Section 8, these Terms, the Transaction Document, any transactions contemplated hereby or thereby, the construction of these Terms, the Transaction Document and all transactions, and the interpretation, performance and enforcement of the rights and duties of Company and Counterparty, will be governed by and construed in accordance with the laws of Delaware, without regards to the jurisdiction’s conflicts of law principles. The parties agree that the laws of Delaware govern the entire relationship between and among the parties, including, without limitation, all issues or claims arising out of, relating to, in connection with or incident to these Terms, the Transaction Document and any transaction it contemplates, whether such claims are based in tort, contract, or arise under statute or in equity. The parties acknowledge and agree that these Terms and the Transaction Document are made and performed in the state of Delaware.
(p) Intellectual Property. All logos related to Company are either trademarks or registered trademarks of Company or its licensors. You may not copy, imitate or use them without Company’s prior written consent. In addition, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Company. You may not copy, imitate, or use them without our prior written consent. All right, title and interest in and to the Company website, any content thereon, the technology related to Company, and any and all""technology and any content created or derived from any of the foregoing, is the exclusive property of Company and its licensors."