TERMS & CONDITIONS
This Behalf Merchant Cash Advance Agreement Term & Conditions (the “Agreement) is entered into by and between Seller and Behalf, Inc, (the “Purchaser”).
1. Purchase and Sale of Future Receivables
Purchaser agrees to purchase from Seller, and the Seller agrees to sell, assign, and transfer to Purchaser, a specified amount (the “Total Outstandings”) of Seller’s future cash, payment card, and other general account receivables (“Future Receivables”) in consideration of a purchase price identified as the order payment (the “Order Payment”). The Total Outstandings associated with the Order Payment advanced shall be set forth in the Transaction Summary for each purchase transaction along with an itemization of the advance fee charged in connection with the purchase transaction (the “Advance Fee”). For purposes of this Agreement, the “Transaction Summary” is the webpage in the sign-up process on Purchaser’s website wherein the Seller confirms the sale of the specified Total Outstandings of Future Receivables to Purchaser by clicking on a “submit payment” button in order to accept the Terms and Conditions of this Agreement in connection with each individual purchase transaction. The Transaction Summary will set forth the start date and amount for the debits of the Total Outstandings (the “Debit Schedule”) and the amount of the Order Payment advanced. If appropriate, the Transaction Summary will also identify a specific percentage (the “Specified Percentage”) of each of Seller’s Future Receivables owed to Seller from its business activity(ies) and/or Seller’s future payment receivables until the Total Outstandings have been collected by Purchaser according to the additional terms and conditions set forth in this Agreement. Seller will remit the Total Outstandings to Purchaser by (i) causing the Processor to pay Purchaser each day an amount of cash equal to the Specified Percentage of all payment card receivables due to Seller on the day in question, (ii) by consenting to a One-Time Payment Basis transaction as described below, or (iii) by consenting to a Multiple Payment Basis transaction as described below. Seller agrees that the Order Payment will be paid directly by Purchaser to a third party vendor (“Vendor”) designated by the Seller for the purpose of paying a bill owed by Seller to the Vendor in connection with Seller’s acquisition of goods or services for eventual resale by the Seller.
The method of payment of the Total Outstandings may take the form of a One-Time Payment (“One-Time Payment Basis”) of the full Total Outstandings from the Future Receivables of the Seller or multiple payments totaling the Total Outstandings in accordance with the Debit Schedule specified in the Transaction Summary (a “Multiple Payment Basis”). Alternatively, the Specified Percentage, as applied to the estimated weekly Future Receivables provided by the Seller during the online application process, will form the basis of an expected regular payment by Seller to Purchaser until such time as the Total Outstandings have been paid to Purchaser. In any event, the Debit Schedule will be agreed upon by Seller during the online application and approval process and recorded in the Transaction Summary.
Seller and Purchaser may enter into multiple transactions for the purchase of Future Receivables under this Agreement. Each purchase transaction will be separately documented through a new Transaction Summary. In the event Seller utilizes a purchase transaction wherein the Order Payment is paid to a Vendor for a product or service that is subject to automatic renewals, Seller agrees that the amount owed to the Vendor for each renewal term will be paid by Purchaser as part of a new purchase transaction of Future Receivables in accordance with the same terms and conditions as the purchase transaction providing for the payment of the fee owed to the Vendor for the prior term. Seller acknowledges and agrees that the terms of Seller’s agreement with the Vendor shall govern the amount and frequency of any automatic renewal payments, recurring billings, or other automatic billing terms and that Purchaser shall have no responsibility therefore. In the event Seller desires to change the terms of the purchase transaction funding the renewal payment, Seller shall make such changes through the Website portal or by contacting support@Behalf.com. Notwithstanding the foregoing, either Purchaser or Seller may terminate the automatic use of subsequent order payment transactions to fund future renewal fees owed to the Vendor by providing advance written notice thereof to the other party on or before five (5) business days prior to the due date of the payment of the automatic renewal.
Seller and Purchaser intend that the transfer of the Total Outstandings from Future Receivables from Seller to Purchaser constitutes a sale and not a loan, for all purposes. Seller hereby agrees that each cash advance transaction is for business use only and not for personal, family, or household use. Seller agrees that the amount of the Total Outstandings equals the fair market value of such an advanced Order Payment. Seller further agrees that the Order Payment will have been delivered in full at the time that said Order Payment has been transmitted to or guaranteed to a Vendor according to a speciﬁc Vendor generated purchase order as recorded in the Transaction Summary.
Purchaser does not guarantee in any way or form the availability, quality, quantity or any other aspect of the goods or services being purchased by Seller and supplied by Vendor as a result of the Agreement. Seller indemniﬁes and holds Purchaser and Company free of any and all responsibility in quality, quantity, order acceptance, collection or non-collection and delivery of the goods or services being acquired by Seller from Vendor as well as any other aspects of the transaction not speciﬁcally mentioned. The indemniﬁcation extends to any and all costs, damages, lost opportunities or other loss of proﬁts, whether direct or indirect that Seller may incur as a result of the purchase or order to purchase goods or services from Vendor. Furthermore, Seller holds Purchaser and Company blameless for any and all breach of obligations of Vendor to Seller and the remedy of any such breach.
To the extent the Transaction Summary describes a future payment of a Specified Percentage, Seller will enter into an agreement acceptable to Purchaser with a Processor to obtain processing services (“Processing Agreement”) and hereby authorizes and directs the Processor to pay the daily cash attributable to the Specified Percentage of payment card receivables deposited into the Bank Account (as defined below) to Purchaser until such time as Purchaser receives the cash attributable to the entire Specified Amount of Future Receivables.
Seller hereby further authorizes Purchaser to originate a debit or debits to the bank account speciﬁed in the online application (the “Bank Account”), which is the bank account owned or controlled by Seller into which the Future Receivables will be deposited, to pay to Purchaser the Specified Percentage of all sales receipts deposited or credited to the Bank Account. In the event the Transaction Summary identifies a One Time Payment Basis or Multiple Payment Basis, Purchaser may also originate a debit or debits to the Bank Account to accomplish the transfer of the payment or payments specified therein. The Total Outstandings will be debited as described in the Transaction Summary.
In the event the Transaction Summary describes a future payment of a Specified Percentage, Seller shall provide authorization via the Purchaser’s payment processor to deposit the Total Outstandings directly into the Purchaser’s account via debits, as designated by the Purchaser. Such authorization shall be irrevocable, absolute and unconditional without the written consent of the Purchaser. Seller acknowledges and agrees that it will provide the Purchaser with certain of the Seller’s ﬁnancial and banking information as permitted by law and when required in order to facilitate this process.
Avoidance of NSF
Seller authorizes Purchaser, at Purchaser’s sole discretion, to debit from the Bank Account an amount that is less than the agreed-upon dollar amount. Purchaser shall extend the Debit Schedule, on notice in order to receive the Total Outstandings.
4. Due Diligence
Seller authorizes Purchaser to conduct background, onsite and ﬁnancial examinations of Seller and its owners and principals. Seller authorizes Purchaser to conduct background and ﬁnancial examinations of Seller, which may include, but are not limited to, address veriﬁcations for up to ten (10) years; querying a commercial and consumer credit history and score from any credit bureau, searches of any and all relevant publicly available information hosted on the world wide web; and a search for bankruptcies, liens or judgments in all jurisdictions where Seller has conducted business (collectively “Due Diligence”). Seller also authorizes Purchaser to conduct Due Diligence on a monthly basis, whenever Seller updates details on the Purchaser website, or in advance of any automatically renewed Order Payment.
Seller represents and warrants that Seller’s sole bank account into which all settlement proceeds of receivables paid to Seller will be deposited in that Bank Account identiﬁed by account name, account number, and bank name and address provided by Seller in the online application or shown on the face of the voided check that Seller shall provide to Purchaser along with this Agreement, the delivery of which voided check is a condition precedent to Purchaser’s obligations under this Agreement is an account used for business-purposes only. Seller further represents and warrants that the Bank Account is not a consumer or individual bank account used for personal, family or household purpose. If Processor transfers to the Bank Account or any other account of Seller any funds that should have been transferred to Purchaser pursuant to this Agreement, or if Seller otherwise has monies deposited in its other account(s) that otherwise should have been transferred to Purchaser pursuant to this Agreement, Seller shall immediately segregate and hold all such funds in express trust for Purchaser’s sole and exclusive beneﬁt. In any such circumstance, Seller shall maintain in the Bank Account a minimum balance equal to the Scheduled Debits owed to Purchaser. Seller acknowledges and agrees that Purchaser and Processor may issue a pre-notiﬁcation to Seller’s bank(s) with respect to such debit transactions. Within twenty-four (24) hours of any request by Purchaser, Seller shall provide, or cause Processor to provide, Purchaser with records and other information regarding Purchaser’s payment card sales, the Bank Account and any other accounts of Seller.
6. Collection Directly from Processor
If indicated in the Transaction Summary, Seller will authorize Processor to hold the Specified Percentage of receivables on behalf of Purchaser and to remit directly to Purchaser the cash attributable thereto at the same time it remits to Seller the cash attributable to the balance of the receivables. This authorization is irrevocable, absolute, and unconditional. Seller further acknowledges and agrees that the Processor will be acting on behalf of Purchaser to collect the Specified Percentage. Seller hereby irrevocably grants Processor the right to hold the Specified Percentage and to pay Purchaser directly (at, before or after the time Processor credits or remits to Seller the balance of the Future Receivables not sold by Seller to Purchaser) until the entire Total Outstandings have been received by Purchaser. Seller acknowledges and agrees that the Processor may provide Purchaser with Seller’s credit card, debit card and other payment card and instrument processing history, including without limitation Seller’s chargeback experience and any communication about Seller received by Processor from a card processing system as well as any other information Purchaser deems pertinent. Seller understands that Purchaser does not have any power or authority to control the Processor’s actions with respect to the authorization, clearing, settlement and other processing of transactions and that Purchaser is not responsible for the Processor’s actions. Seller agrees to hold Purchaser harmless for the Processor’s actions or omissions.
7. Seller’s Covenants, Representations, and Warranties
Seller represents, warrants, and covenants the following as of this date and during the term of this Agreement:
- Seller represents that it is not contemplating closing its business.
- Seller represents that it has not commenced any case or proceeding seeking protection under any bankruptcy or insolvency law, or had any such case or proceeding commenced against it, and it is not contemplating commencing any such case or proceeding.
- Seller represents that its Future Receivables are free and clear of all claims, liens or encumbrances of any kind whatsoever.
- Seller represents that it does not intend to temporarily close its business for renovations or other reasons during the next twelve months.
- Seller shall not take any action to discourage the use of payment cards (including credit cards, debit cards, prepaid cards, or any other network branded card products) which are settled through its processor or to permit any event to occur which could have an adverse eﬀect on the use, acceptance or authorization of such cards for the purchase of Seller’s services and products.
- Seller shall not change its arrangements with its Processor in any way which is adverse to Purchaser.
- Seller shall not change the Processor through which the major payment cards are settled from Processor to another card processor or to permit any event to occur that could cause a diversion of any of Seller’s payment card transactions to another processor without Purchaser’s prior written consent.
- Seller represents that as of this date, all of Seller’s payment card sales and transactions are being processed exclusively with Processor or are being deposited exclusively into the Bank Account, provided in the online application.
- Seller shall not sell, dispose, convey or otherwise transfer its business or assets without the express prior written consent of Purchaser; Seller shall not enter into a concurrent agreement for the purchase and sale of future receivables with any purchaser aside from Purchaser.
- Seller shall furnish Purchaser with the bank statements for the Bank Account and any and all other accounts to which proceeds from Seller’s sales are deposited within seven days’ of any such request by Purchaser.
- Seller shall unconditionally ensure that the cash Seller receives from the Processor and the cash otherwise deposited into the Bank Account is immediately available to Purchaser for recovery through the origination of ACH debit or debits to the Bank Account in accordance with the Transaction Summary and Debit Schedule.
- Seller shall not attempt to revoke its Processor authorization to Purchaser set forth in this Agreement or otherwise take any measure to interfere with Purchaser’s ability to collect the cash that Seller receives (i) from Processor attributable to the Specified Percentage of Future Receivables or (ii) through debits to the Bank Account as outlined in the Debit Schedule.
- Seller shall not close the Bank Account, or close or change the bank account into which Processor deposits the Future Receivables to another account without the Purchaser’s prior written consent.
- Seller shall not conduct its businesses under any name other than as disclosed to Purchaser or change any of its places of business without Purchaser’s prior written consent.
- Seller represents that the information it furnished Purchaser in the online application and this Agreement, including without limitation, Seller’s processing statements, is true and accurate in all respects and fairly represents the ﬁnancial condition, result of operations and cash ﬂows of Seller at such dates, and since the dates therein, there has been no material adverse change in the business or its prospects or in the ﬁnancial conditions, results of operations, or cash ﬂows of Seller.
8. Sale of Future Receivables/Non-Consumer Transaction
Seller and Purchaser agree that the Order Payment advanced by Purchaser in exchange for the Total Outstandings amount of Future Receivables is for the purchase and sale of the Total Outstandings of Future Receivables and is not intended to be, nor shall it be construed as, a loan or an assignment for security from Purchaser to Seller. Seller agrees that it will never institute, prosecute, or in any way aid in the institution or prosecution of any claim, demand, action, or cause of action at law or in equity against the Purchaser for a claim of usury, a claim that the Purchaser is required to have any lending license, or any other claim contending that the Order Payment paid by Purchaser in exchange for the Total Outstandings is, or should be construed as, a loan from the Purchaser to the Seller. The foregoing is a covenant not to sue and not a release. In the event that Seller breaches or in any way violates the terms of this Section 8, the Seller agrees to indemnify the Purchaser for all damages arising from that breach, including, without limitation, the payment of all costs and expenses of every kind for the enforcement of Purchaser’s rights and remedies under this Agreement, including any and all attorneys’ fees and costs incurred in connection therewith. Seller hereby acknowledges and agrees that neither party to this Agreement is a “consumer” with respect to this Agreement and underlying transaction, and this Agreement thereof shall not be construed as a consumer transaction.
9. No Right to Repurchase
Seller acknowledges that it has no right to repurchase the Total Outstandings of Future Receivables from Purchaser.
10. Sale of Additional Future Receivables
Nothing herein shall obligate either party to enter into additional agreement for the sale and purchase Future Receivables; however, Seller grants Purchaser the right of ﬁrst refusal to purchase any such additional Future Receivables that Seller may wish to sell during the term of this Agreement and during the period ending ninety (90) days after termination of this Agreement. Under such right of ﬁrst refusal, if Seller desires to sell additional Future Receivables, Seller agrees to sell such receivables to Purchaser only, and not to any other prospective purchasers, so long as Purchaser purchases such Future Receivables on terms that are no less favorable to Seller as the terms and conditions of this Agreement.
11. Government Approvals
Seller is in compliance with any and all applicable federal, state and local laws and regulations and rules and regulations of card associations and payment networks. Seller possesses and is in compliance with all permits, licenses, approvals, consents, registrations and other authorizations necessary to own, operate and lease its properties and to conduct the business in which it is presently engaged.
A “Default” shall include, but not limited to, any of the following events: (a) the breach by Seller of any covenants contained in this Agreement; and (b) any representation or warranty made by the Seller in this Agreement, proving to have been incorrect, false, or misleading in any material respect.
Seller hereby explicitly agrees that the communications in relation to an event constituting default may be made by electronic mail, by phone, including cellular phone, as provider to Purchaser by the Purchaser or Purchaser’s designee.
Seller hereby authorizes Behalf to notify a Vendor of Seller’s default of this Agreement.
Purchaser shall be entitled to all remedies available under law and equity, including the right to non-judicial foreclosure, and to receive all Indemniﬁed Amounts (as deﬁned in and in accordance with Section 14 hereof) from Seller. In the event that Seller breaches any of the Seller’s Covenants speciﬁed in this Agreement, Seller agrees that Purchaser shall be entitled to, but not limited to, damages equal to the amount by which the cash attributable to the Total Outstandings of Future Receivables and any other amounts Purchaser is entitled to receive hereunder exceeds the amount of cash received from receivables that have previously been delivered by or on behalf of Seller to Purchaser pursuant to this Agreement. Seller hereby agrees that Purchaser and the Processor may automatically debit or otherwise withdraw such damages from Seller’s accounts (including the Bank Account) via the payment processor system, electronic checks, wire transfers or otherwise.
In the event of a Breach, Seller shall assume liability for and hereby agrees to indemnify, protect, and hold harmless Purchaser, Company, its affiliates, and its and their officers, directors, employees, agents, representatives and assignees (collectively, the “Indemniﬁed Parties”), from and against any and all liabilities, claims, losses, obligations, damages, penalties, suits, actions, controversies, or proceedings of any kind, imposed upon, incurred by, or asserted against any of the Indemniﬁed Parties, in any way arising from (i) actions taken in reliance upon information or instructions provided to the Purchaser and/or the Processor or their member banks by or on behalf of Seller, (ii) the occurrence or termination of this Agreement, or (iii) in connection with, relating to, or incident to such Breach (collectively, “Indemniﬁed Amounts”), including the payment of all costs and expenses of every kind for the enforcement of Purchaser’s rights and remedies hereunder, including reasonable attorneys’ fees, costs of any trial, appellate court proceeding, administrative proceeding, or any negotiations or consultations with respect to any such Breach. Such Indemniﬁed Amounts will bear interest at the highest rate of interest permitted by applicable law until paid.
Seller shall maintain insurance in such amounts and against such risks as are consistent with past practice and shall show proof of such insurance upon the request of Purchaser.
All notices, requests, demands and other communications hereunder shall be in writing and shall be delivered by mail, overnight delivery or hand delivery to the respective Parties. Notices to Purchaser shall be sent to the following address:
PO Box 1804, New York, NY 10159
17. Binding Effect; Assignment
This Agreement shall be binding upon and inure to the beneﬁt of Seller and Purchaser and their respective successors and assigns, except that Seller shall not have the right to assign or delegate any of their rights or obligations hereunder or any interest herein without the prior written consent of Purchaser, which consent may be withheld in Purchaser’s sole discretion. Purchaser reserves the right to assign or delegate this Agreement or any of its rights or obligations hereunder with or without prior notice to Seller.
18. Entire Agreement
This Agreement contains the entire agreement and understanding between Seller and Purchaser and supersedes all prior agreements and understandings, whether oral or in writing, relating to the subject matter hereof unless otherwise speciﬁcally reaffirmed or restated herein. Seller and Purchaser each acknowledge and agree that he, she or it is not relying on any representations not speciﬁcally embodied in this Agreement.
19. Governing Law and Jurisdiction
THIS AGREEMENT AND ALL TRANSACTIONS IT CONTEMPLATES, INCLUDING ALL ISSUES CONCERNING THE VALIDITY OF THE AGREEMENT AND ANY TRANSACTIONS IT CONTEMPLATES, THE CONSTRUCTION OF ITS TERMS, AND THE INTERPRETATION, PERFORMANCE AND ENFORCEMENT OFTHE RIGHTS AND DUTIES OF PURCHASER, COMPANY AND SELLER (EACH, A “PARTY” AND COLLECTIVELY, THE “PARTIES”), SHALL BE GOVERNED BY AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER LAW.WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PARTIES AGREE THE LAWS OF THE STATE OF NEW YORK SHALL 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 THIS AGREEMENT AND ANY TRANSACTIONS IT CONTEMPLATES, WHETHER SUCH CLAIMS ARE BASED IN TORT, CONTRACT, OR ARISE UNDER STATUTE OR IN EQUITY. AS USED HEREIN, THE PHRASE “LAWS OF THE STATE OF NEW YORK “INCLUDES NEW YORK LAW WITH RESPECT TO, AMONG OTHER THINGS, ANY APPLICABLE STATUTE OF LIMITATIONS, LACHES, OR SIMILAR TIME-BASED DEFENSE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS AGREEMENT IS MADE AND PERFORMED IN THE STATE OF NEW YORK. PURCHASER AND SELLER AGREE THAT ANY AND ALL DISPUTES BETWEEN THEM REGARDING OR RELATING TO THIS AGREEMENT IN ANY WAY SHALL BE EXCLUSIVELY VENUED IN THE STATE OR FEDERAL COURTS OF THE STATE OF NEW YORK AND, BY ENTERING INTO THIS AGREEMENT, EACH OF SELLER AND PURCHASER CONSENT TO JURISDICTION THEREIN.
20. Limitation of Liability
In no event will Purchaser, Company or its oﬃcers, directors, employees, agents, representatives and assignees be liable for any claims asserted by Seller under any theory of law or statute, including any tort or contract theory for lost proﬁts, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby expressly waived to the fullest extent permitted by law by Seller.
21. Waiver of Jury Trial
THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION, CONTROVERSY OR PROCEEDING OF ANY KIND ON ANY MATTER ARISING OUT OF, RELATING TO, IN CONNECTION WITH, OR INCIDENT TO THIS AGREEMENT OR ANY TRANSACTIONS IT CONTEMPLATES OR THE ENFORCEMENT HEREOF, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. THE PARTIES HERETO ACKNOWLEDGE THAT EACH MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ONLY AFTER EXTENSIVE CONSIDERATION OF THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.
22. Class Action Waiver
The Parties acknowledge and agree that the amounts at issue in this transaction and any disputes that may arise between them are large enough to justify dispute resolution on an individual basis. EACH PARTY HERETO WAIVES ANY RIGHT TO ASSERT ANY CLAIMS AGAINST ANY OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW.
23. Collection and Attorneys’ Fees
Purchaser shall be entitled to receive from Seller and Seller shall pay all reasonable costs associated with a breach of this Agreement and the enforcement thereof, including collection charges, court costs and reasonable attorneys’ fees.