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Purchase and Sale of Future Receipts Agreement

This Purchase and Sale of Future Receipts Agreement (“Agreement”) effective {{DATE}}  is made by and between Fundfi, LLC  (“Buyer”), the business identified above (“Seller”), and each Guarantor identified below (each a “Guarantor”).

Seller, hereby sells and assigns to Buyer, without recourse, the Purchased Amount and will deliver the Specified Percentage of the proceeds of each future sale made by Seller (collectively “Future Receipts”) in accordance with this Agreement.  

Agreement of Seller:   By signing below Seller agrees to the terms and conditions contained in this Agreement, including those terms and conditions on the following pages, and further agrees that this transaction is for business purposes and not for personal, family, or household purposes.

Agreement of Each Guarantor:   By signing below each Guarantor agrees to the terms and conditions contained in this Agreement, including those terms and conditions on the following pages, and further agrees that this transaction is for business purposes and not for personal, family, or household purposes.

Notice : This agreement contains a personal guaranty of performance, and by signing below, you agree that you will be personally liable for the prompt and complete performance of obligations of the Seller as described in this Agreement.

Terms and Conditions

1. Future Receipts.   “Future Receipts” includes all payments made by cash, check, Automated Clearing House (“ACH”) or other electronic transfer, credit card, debit card, bank card, charge card (each such card shall be referred to herein as a “Payment Card”)   or other form of monetary payment in the ordinary course of Seller’s business.   As payment for the Purchased Amount, Buyer will pay to Seller the Purchase Price, minus any amounts shown above.  

2. Buyer’s Acceptance of Agreement.   The obligation of Buyer under this Agreement will not be effective unless and until Buyer has completed its review of the Seller and has accepted this Agreement by delivering the Net Amount Funded to Seller, shown above.  Prior to accepting this Agreement, Buyer may conduct a processing trial to confirm its access to Seller’s Bank Account, shown above (the “Account”) and the ability to withdraw the Remittance Amount.  If the processing trial is not completed to the satisfaction of Buyer, Buyer will refund to Seller all funds that were obtained by Buyer during the processing trial.

3. Delivery of Purchased Amount.  

1. Seller to Deposit Future Receipts Each Day.  Seller must deposit all Future Receipts into the Account on a daily basis and must instruct Seller’s credit card processor, which must be approved by Buyer (the “Processor”) to deposit all Payment Card receipts of Seller into the Account on a daily basis.  Seller agrees not to change the Account or add an additional Account without the express written consent of Buyer.  

2. Authorization for Buyer to Debit Remittance Amount.   Seller authorizes Buyer to debit the Remittance Amount from the Account according to the Remittance Frequency by either ACH or electronic check.  Seller will provide Buyer with all required access codes and agrees not to change them without prior written consent from Buyer.  Seller will provide an appropriate ACH authorization to Buyer.  If any draft or electronic debit is returned for insufficient funds, then Seller will be responsible for any fees incurred by Buyer resulting from a rejected electronic check or ACH debit attempt, as set forth on Appendix A.  If the Remittance Frequency is weekly, Buyer may change the Remittance Frequency to daily if Seller’s weekly remittance is rejected for any reason two or more times during the course of this Agreement. Buyer is not responsible for any overdrafts or rejected transactions that may result from Buyer’s debiting any amount authorized under the terms of this Agreement.  Seller understands that the foregoing ACH authorization is a fundamental condition to induce Buyer to accept the Agreement.  Consequently, such authorization is intended to be irrevocable. In the event that Seller changes or permits changes to the Account or the ACH authorization approved by the Buyer or adds an additional bank account, Buyer shall have the right, without waiving any of its rights and remedies and without notice to Seller or any Guarantor, to notify the new or additional bank of this Agreement and to direct such new or additional bank to remit to the Buyer all or any portion of the amounts received by such bank.  Seller hereby grants to Buyer an irrevocable power of attorney, which power of attorney shall be coupled with an interest, and hereby appoints the Buyer or any of the representatives of Buyer as Seller’s attorney in fact, to take any and all action necessary to direct such new or additional bank to remit to Buyer amounts received by such bank.

4. Changes to the Remittance Amount (IMPORTANT PROTECTION FOR SELLER).   The initial Remittance Amount is intended to represent the Specified Percentage of Seller’s periodic Future Receipts.  Once each calendar month, Seller or Buyer may request an adjustment to the Remittance Amount to more closely reflect the Seller’s actual Future Receipts times the Specified Percentage.  Seller agrees to provide Buyer any information requested by Buyer to assist in this reconciliation.  Within five days of Buyer’s reasonable verification of such information, Buyer shall   adjust the Remittance Amount on a going-forward basis to more closely reflect the Seller’s actual Future Receipts times the Specified Percentage.  Buyer will notify Seller prior to any such adjustment.  After each adjustment made pursuant to this paragraph, the new dollar amount shall be deemed the Remittance Amount until any subsequent adjustment. To request an adjustment to the Remittance Amount call _______________ or email support @FundFi.com.

5. Remittance Amount Upon Default.   Upon the occurrence of an Event of Default, the Remittance Amount shall equal 100% of all Future Receipts.

6. Nonrecourse Sale of Future Receipts (THIS IS NOT A LOAN).   Seller is selling a portion of a future revenue stream to Buyer at a discount, not borrowing money from Buyer.  There is no interest rate or payment schedule and no time period during which the Purchased Amount must be collected by Buyer.  Seller acknowledges that it has no right to repurchase the Purchased Amount from Buyer.  Buyer assumes the risk that Future Receipts may be remitted more slowly than Buyer may have anticipated or projected because Seller’s business has slowed down, and the risk that the full Purchased Amount may never be remitted because Seller’s business went bankrupt or Seller otherwise ceased operations in the ordinary course of business.  Buyer is buying the Purchased Amount of Future Receipts knowing the risks that Seller’s business may slow down or fail, and Buyer assumes these risks based on Seller’s representations, warranties and covenants in this Agreement that are designed to give Buyer a reasonable and fair opportunity to receive the benefit of its bargain.  By this Agreement, Seller transfers to Buyer full and complete ownership of the Purchased Amount of Future Receipts and Seller retains no legal or equitable interest therein.  Seller agrees that it will treat the Purchase Price and Purchased Amount in a manner consistent with a sale in its accounting records and tax returns.  Seller agrees that Buyer is entitled to audit Seller’s accounting records upon reasonable Notice in order to verify compliance.  Seller waives any rights of privacy, confidentiality or taxpayer privilege in any such litigation or arbitration in which Seller asserts that this transaction is anything other than a sale of future receipts.  

7. Fees and Charges.   Other than the Origination Fee, if any, set forth above, Buyer is NOT CHARGING ANY ORIGINATION OR BROKER FEES to Seller.  If Seller is charged another such fee, it is not being charged by Buyer.  A list of all fees and charges applicable under this Agreement is contained in Appendix A.

8. Credit Report and Other Authorizations.   Seller and each of the Owners signing above authorize Buyer, its agents and representatives and any credit reporting agency engaged by Buyer, to (i) investigate any references given or any other statements or data obtained from or about Seller or any of its Owners for the purpose of this Agreement; (ii) obtain consumer and business credit reports on the Seller and any of its Owners; and (iii) to contact personal and business references provided by the Seller in the Application, at any time now or for so long as Seller and/or Owners continue to have any obligations to Buyer as a consequence of this Agreement or for Buyer’s ability to determine Seller’s eligibility to enter into any future agreement with Buyer.

9. Authorization to Contact Current and Prior Banks.   Seller hereby authorizes Buyer to contact any current or prior bank of the Seller in order to obtain whatever information it may require regarding Seller’s transactions with any such bank.  Such information may include but is not limited to, information necessary to verify the amount of Future Receipts previously processed on behalf of Seller and any fees that may have been charged by the bank.  In addition, Seller authorizes Buyer to contact any current or prior bank of the Seller for collections and in order to confirm that Seller is exclusively using the Account identified above, or any other account approved by Buyer, for the deposit of all business receipts.

10. Right to Cancel.   Seller understands that Buyer offers Seller a right to cancel this Agreement at any time within 3 days after Buyer has delivered the Net Amount Funded.  Seller may exercise this right by notifying Buyer that it is cancelling this Agreement and returning the Net Amount Funded to Buyer.  For the Seller’s right to cancel to be effective, Buyer must receive both the notice and the return of the Net Amount Funded within 3 days after the Buyer has delivered the Net Amount Funded.  Buyer shall retain the Origination Fee, but Seller shall not be responsible for any other costs if this Agreement is cancelled pursuant to this Section.

11. Financial Information.   Seller authorizes Buyer and its agents to investigate its financial responsibility and history, and will provide to Buyer any authorizations, bank or financial statements, tax returns, etc., as Buyer deems necessary in its sole discretion prior to or at any time after execution of this Agreement.  A photocopy of this authorization will be deemed acceptable as an authorization for release of financial and credit information.  Buyer is authorized to update such information and financial and credit profiles from time to time as it deems appropriate.  Seller waives, to the maximum extent permitted by law, any claim for damages against Buyer or any of its affiliates relating to any investigation undertaken by or on behalf of Buyer as permitted by this Agreement or disclosure of information as permitted by this Agreement.

12. Transactional History.   Seller authorizes all of its banks and brokers and Payment Card processors to provide Buyer with Seller’s banking, brokerage and/or processing history to determine qualification or continuation in this program, or for collections upon an Event of Default.

13. Publicity.   Seller hereby authorizes Buyer to use its name in listings of clients and in advertising and marketing materials.

14. Application of Amounts Received by Buyer.   Buyer reserves the right to apply amounts received by it under this Agreement to any fees or other charges due to Buyer from Seller prior to applying such amounts to reduce the amount of any outstanding Purchased Amount.  

15. Representations, Warranties and Covenants of Seller.   As of the date of this Agreement and, unless expressly stated otherwise, continuing until Buyer has received 1) the Purchased Amount and 2) all fees and charges (including legal fees) due under this Agreement, Seller represents, warrants and covenants to Buyer as follows:

3. Good Faith and Best Efforts.   Seller will conduct its business in good faith and will use its best efforts to continue its business at least at its current level, to enable Buyer to obtain the Purchased Amount.

4. Stacking Prohibited.   Seller shall not enter into any merchant cash advance or any loan agreement that relates to or encumbers its Future Receipts or requires daily payments with any party other than Buyer for the duration of this Agreement.  Buyer may share information regarding this Agreement with any third party in order to determine whether Seller is in compliance with this provision.

5. Financial Condition and Financial Information.   Any bank statements and financial statements of Seller that have been furnished to Buyer, and future statements that will be furnished to Buyer, fairly represent the financial condition of Seller at such dates, or any change in the ownership of Seller.  Buyer may request bank and financial statements at any time during the performance of this Agreement, and the Seller shall provide them to Buyer within five business days of such request.  Furthermore, Seller represents that all documents, forms and recorded interviews provided to or with Buyer are true, accurate and complete in all respects, and accurately reflect Seller’s financial condition and results of operations at the time they are provided.  Seller further agrees to authorize the release of any past or future tax returns to Buyer.

6. Governmental Approvals.   Seller is in compliance and shall comply with all laws and has valid permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged and/or will engage in hereafter.

7. Authority to Enter Into This Agreement.   Seller and the person(s) signing this Agreement on behalf of Seller, have full power and authority to incur and perform the obligations under this Agreement, all of which have been duly authorized.

8. Change of Name or Location or Sale or Closing of Business.   Seller will not conduct Seller’s businesses under any name other than as disclosed to Buyer or change any of its places of business without prior written consent of Buyer.  Seller will not voluntarily sell, dispose, transfer or otherwise convey all or substantially all of its business or assets without (i) the express prior written consent of Buyer; and (ii) the written agreement of any purchaser or transferee assuming all of Seller’s obligations under this Agreement pursuant to documentation satisfactory to Buyer.  Except as disclosed to Buyer in writing, Seller has no current plans to close its business either temporarily, whether for renovations, repairs or any other purpose, or permanently.  Seller will not voluntarily close its business on a temporary basis for renovations, repairs, or any other purposes.  This provision, however, does not prohibit Seller from closing its business temporarily if such closing is required to conduct renovations or repairs that are required by local ordinance or other legal order, such as from a health or fire inspector, or if otherwise forced to do so by circumstances outside of the control of Seller.  Prior to any such closure, Seller will provide Buyer ten business days’ notice to the extent practicable.  

9. No Pending or Contemplated Bankruptcy as of the Date of this Agreement.   As of the date of this Agreement, Seller does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against Seller.  Seller represents that it has not consulted with a bankruptcy attorney within six months prior to the date of this Agreement.  Seller further warrants that as of the date of this Agreement it does not anticipate filing a bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it.

10. Seller to Maintain Insurance.   Seller will possess and maintain insurance in such amounts and against such risks as are necessary to protect its business and will provide proof of such insurance to Buyer upon demand.

11. Seller to Pay Taxes Promptly.   Seller will promptly pay all necessary taxes, including but not limited to employment and sales and use taxes.

12. No Violation of Prior Agreements.   Seller’s execution and performance of this Agreement will not conflict with any other agreement, obligation, promise, court order, administrative order or decree, law or regulation to which Seller is subject, including any agreement that prohibits the sale or pledge of Seller’s Future Receipts.

13. No Diversion of Receipts.   Seller will not permit any event to occur that could cause a diversion of any of Seller’s Future Receipts from the Account.

14. Seller’s Knowledge and Representation.   Seller represents, warrants, and agrees that it is a sophisticated business entity familiar with the kind of transaction covered by the Agreement; it was represented by counsel or had full opportunity to consult with counsel.

15. Accurate and Complete Information. Seller represents, warrants, and agrees that all information provided to Buyer, all statements made to Buyer relating to this transaction in any way have been truthful, accurate, and complete.  Seller further agrees that Seller will be truthful in all future statements to Buyer, and will provide Buyer with accurate and complete information regarding Seller’s business as required by this Agreement.

16. Rights of Buyer.

16. Acknowledgment of Security Interest and Security Agreement.   The Future Receipts sold by Seller to Buyer pursuant to this Agreement shall constitute and shall be construed and treated for all purposes as a true and complete sale, conveying good title to the Future Receipts free and clear of any liens and encumbrances, from Seller to Buyer.  To the extent the Future Receipts are “accounts” or “payment intangibles” as those terms are defined in the Uniform Commercial Code as in effect in the state in which the Seller is located (“UCC”) then: (i) the sale of the Future Receipts creates a security interest as defined in the UCC; (ii) this Agreement constitutes a “security agreement” under the UCC; and (iii) Buyer has all the rights of a secured party under the UCC with respect to such Future Receipts.  Seller further agrees that, with or without an Event of Default, Buyer may notify account debtors, or other persons obligated on the Future Receipts, or holding the Future Receipts, of Seller’s sale of the Future Receipts and may instruct them to make payment or otherwise render performance to or for the benefit of Buyer.

17. Financing Statements.   Seller authorizes Buyer to file one or more UCC-1 forms consistent with the UCC to give notice that the Purchased Amount of Future Receipts is the sole property of Buyer.  The UCC filing may state that such sale is intended to be a sale and not an assignment for security and may state that the Seller is prohibited from obtaining any financing that impairs the value of the Future Receipts or Buyer’s right to collect same.  Seller authorizes Buyer to debit the Account for all costs incurred by Buyer associated with the filing, amendment or termination of any UCC filings.  

18. Right of Access.   In order to ensure that Seller is complying with the terms of this Agreement, Buyer shall have the right to (i) enter, without notice, the premises of Seller’s business for the purpose of inspecting and checking Seller’s transaction processing terminals to ensure the terminals are properly programmed to submit and or batch Seller’s daily receipts to the Processor and to ensure that Seller has not violated any other provision of this Agreement; (ii) Seller shall provide access to its employees and records and all other items as requested by Buyer; and (iii) have Seller provide information about its business operations, banking relationships, vendors, landlord and other information to allow Buyer to interview any relevant parties.

19. Phone Recordings and Contact.   Seller agrees that any call between Buyer and Seller, and their agents and employees may be recorded or monitored.  Further, Seller agrees that (i) it has an established business relationship with Buyer, its employees and agents and that Seller may be contacted from time-to-time regarding this or other business transactions; (ii) that such communications and contacts are not unsolicited or inconvenient; and (iii) that any such contact may be made at any phone number, email address, or facsimile number given to Buyer by the Seller, its agents or employees, including cellular telephones.

20. ACH Authorization.   Seller represents and warrants that (i) the Account is Seller’s bank account; (ii) the person executing this Authorization on behalf of Seller is an authorized signer on the Account and has the power and authority to authorize Buyer to initiate ACH transactions to and from the Account; and (iii) the Account is a legitimate, open, and active bank account used solely for business purposes and not for personal, family or household purposes.  If an ACH transaction is rejected by Seller’s financial institution for any reason other than a stop payment order placed by Seller with its financial institution, including without limitation insufficient funds, Seller agrees that Buyer may resubmit up to two times any ACH transaction that is dishonored.  Seller’s bank may charge Seller fees for unsuccessful ACH entries.  Seller agrees that Buyer will have no liability to Seller for such fees.  In the event Buyer makes an error in processing any payment or credit, Seller authorizes Buyer to initiate ACH entries to or from the Account to correct the error.  Seller acknowledges that the origination of ACH entries to and from the Account must comply with applicable law and applicable network rules.  Seller agrees to be bound by the Rules and Operating Guidelines of NACHA (formerly known as the National Automated Clearing House Association).  Seller will not dispute any ACH transaction initiated pursuant to this Authorization, provided the transaction corresponds to the terms of this Authorization.  Seller requests the financial institution that holds the Account to honor all ACH entries initiated in accordance with this Authorization.  

17. Events of Default.   The occurrence of any of the following events shall constitute an “Event of Default”: (a) Seller intentionally interferes with Buyer’s right to collect the Remittance Amount; (b) Seller violates any term or covenant in this Agreement; (c) Seller uses multiple depository accounts without the prior written consent of Buyer; (d) Seller revokes the ACH Authorization; (e) Seller changes its depositing account or its payment card processor without the prior written consent of Buyer; or (f) Seller defaults under any other agreement with Buyer, or breaches any of the terms, covenants and conditions of any other agreement with Buyer.

18. Remedies.   If any Event of Default occurs, Buyer may proceed to protect and enforce its rights including, but not limited to, the following:

21. The Specified Percentage shall equal 100%.  The full undelivered Purchased Amount plus all fees and charges (including legal fees) assessed under this Agreement will become due and payable in full immediately.

22. Buyer may charge a Default Fee of 25% of amount of undelivered Purchased Amount at the time of the Event of Default.

23. Buyer may enforce the provisions of the Personal Guaranty of Performance against each Owner.

24. Seller shall pay to Buyer all reasonable costs associated with the Event of Default.  Buyer may proceed to protect and enforce its rights and remedies by arbitration or lawsuit.  In any such arbitration or lawsuit, under which Buyer shall recover Judgment against Seller, Seller shall be liable for all of Buyer’s costs, including but not limited to all reasonable attorneys’ fees and court costs.  However, the rights of Buyer under this provision shall be limited as provided in the arbitration provision set forth below.

25. This Agreement shall be deemed Seller’s Assignment of Seller’s Lease of Seller’s business premises to Buyer.  Upon an Event of Default, Buyer may exercise its rights under this Assignment of Lease without prior notice to Seller.

26. Buyer may debit Seller’s depository accounts wherever situated by means of ACH debit or facsimile signature on a computer-generated check drawn on any of Seller’s bank accounts for all sums due to Buyer.

27. Subject to arbitration as provided in Section 34 of this Agreement, all rights, powers and remedies of Buyer in connection with this Agreement may be exercised at any time by Buyer after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.

19. Modifications; Amendments.           No modification, amendment, waiver or consent of any provision of this Agreement shall be effective unless the same is in writing and signed by Buyer.

20. Assignment.   Buyer may assign, transfer or sell its rights to receive the Purchased Amount or delegate its duties hereunder, either in whole or in part, with or without prior written notice to Seller.

21. Personal Guaranty of Performance.   Guarantor agrees to irrevocably, absolutely and unconditionally guarantee to Buyer prompt and complete performance of the following obligations of Seller (the “Guaranteed Obligations”):

28. Seller’s obligation to provide bank statements and other financial information within five business days after request from Buyer;

29. Seller’s obligation to not change its payment card processor, change its bank account, or add bank accounts;

30. Seller’s obligation to not conduct Seller’s businesses under any name other than as disclosed to Buyer;

31. Seller’s obligation to not change any of its places of business without prior written consent by Buyer;

32. Seller’s obligation to not voluntarily sell, dispose, transfer or otherwise convey its business or substantially all business assets without (i) the express prior written consent of Buyer, and (ii) the written agreement of any purchaser or transferee assuming all of Seller's obligations under this Agreement pursuant to documentation satisfactory to Buyer;

33. Seller’s obligation to not enter into any merchant cash advance or any loan agreement that relates to or encumbers its Future Receipts with any party other than Buyer for the duration of this Agreement without Buyer’s prior written consent; and

34. Seller’s obligation to provide truthful, accurate, and complete information as required by this Agreement.  

22. Guarantor Waivers.   Buyer does not have to notify Guarantor of any of the following events and Guarantor will not be released from its obligations under the Agreement and this Personal Guaranty of Performance if it is not notified of: (i) Seller’s failure to timely perform any obligation under the Agreement; (ii) any adverse change in Seller ’s financial condition or business; (iii) Buyer’s acceptance of the Agreement; and (iv) any renewal, extension or other modification of the Agreement or Seller ’s other obligations to Buyer.  In addition, Buyer may take any of the following actions without releasing Guarantor from any of its obligations under the Agreement and this Performance Guaranty: (i) renew, extend or otherwise modify the Agreement or Seller’s other obligations to Buyer; and (ii) release Seller from its obligations to Buyer.  Guarantor shall not seek reimbursement from Seller or any other guarantor for any amounts paid by it under the Agreement or this Performance Guaranty.  Guarantor permanently waives and shall not seek to exercise any of the following rights that it may have against Seller, or any other guarantor, for any amounts paid by it, or acts performed by it, under the Agreement or this Performance Guaranty: (i) subrogation; (ii) reimbursement; (iii) performance; (iv) indemnification; or (v) contribution.  In the event that Buyer must return any amount paid by Seller or any other guarantor of the Guaranteed Obligations because that person has become subject to a proceeding under the United States Bankruptcy Code or any similar law, Guarantor’s obligations under the Agreement and this Performance Guaranty shall include that amount.

23. Guarantor Acknowledgement .  Guarantor acknowledges that Guarantor understands the seriousness of the provisions of the Agreement, including the Jury Waiver, Class Action Waiver and Arbitration sections, and has had a full opportunity to consult with counsel their choice; and have consulted with counsel or have decided not to avail himself / herself / themselves of that opportunity.

24. Notices.  

35. Notices from Buyer.   Buyer may send any notices, disclosures, terms and conditions, other documents, and any future changes to Seller by regular mail or by e-mail, at Buyer’s option and Seller consents to such electronic delivery.  Notices sent by e-mail are effective when sent.  Notices sent by regular mail become effective three days after mailing to Seller’s address set forth in this Agreement.

36. Notices from Seller and Guarantor.   Seller and Guarantor may send any notices to Buyer by e-mail only upon the prior written consent of Buyer, which consent may be withheld or revoked at any time in Buyer’s sole discretion.  Otherwise, any notices or other communications from Seller and Guarantor to Buyer must be delivered by certified mail, return receipt requested, to Buyer’s address set forth in this Agreement.  Notices sent to Buyer shall become effective only upon receipt by Buyer.

25. Binding Effect; Governing Law, Venue and Jurisdiction.   This Agreement shall be binding upon and inure to the benefit of Seller, Buyer and their respective successors and assigns, except that Seller shall not have the right to assign its rights hereunder or any interest herein without the prior written consent of Buyer which consent may be withheld in Buyer’s sole discretion.  Except as set forth in the Arbitration section, this Agreement shall be governed by and construed in accordance with the laws of the state of Florida or New York, without regard to any applicable principles of conflicts of law.    Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach of this Agreement, shall, if Buyer so elects, be instituted in any court sitting in Florida or the State of New York, (the “Acceptable Forums”).  Seller and Guarantor agree that the Acceptable Forums are convenient to it, and submit to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue.  Should such proceeding be initiated in any other forum, Seller and Guarantor waive any right to oppose any motion or application made by Buyer to transfer such proceeding to an Acceptable Forum. Buyer, Seller and Guarantor further agree that the mailing by certified or registered mail, return receipt requested, of any process required by any such court will constitute valid and lawful service of process against them, without the necessity for service by any other means provided by statute or rule of court, but without invalidating service performed in accordance with such other provisions.

26. Survival of Representations, Warranties and Covenants.   All representations, warranties and covenants herein shall survive the execution and delivery of this Agreement and shall continue in full force until all obligations under this Agreement shall have been satisfied in full.

27. Interpretation.   All Parties hereto have had the opportunity to review this Agreement with an attorney of their own choosing and have relied only on their own attorney’s guidance and advice or have been provided sufficient opportunity to have an attorney of their choosing review the Agreement.  No construction determinations shall be made against either Party hereto as drafter.

28. Entire Agreement and Severability.   This Agreement embodies the entire agreement between Seller and Buyer and supersedes all prior agreements and understandings relating to the subject matter hereof.  In case any of the provisions in this Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of any other provision contained herein shall not in any way be affected or impaired.

29. Facsimile Acceptance.   Facsimile signatures, or any other electronic means reflecting the party’s signature hereto, shall be deemed acceptable for all purposes.  This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which when taken together shall constitute one and the same agreement.  

30. Confidentiality.   The terms and conditions of this Agreement are proprietary and confidential. Unless required by law, Seller shall not disclose this information to anyone other than its attorney, accountant or similar service provider and then only to the extent such person uses the information solely for purpose of advising Seller and Guarantor and first agrees in writing to be bound by the terms of this Section.  A breach of this section entitles Buyer to damages and legal fees as well as temporary restraining order and preliminary injunction without bond.

31. Monitoring, Recording, and Solicitations.

37. Authorization to Contact Seller by Phone.   Seller and Guarantor authorize Buyer, its affiliates, agents and independent contractors to contact Seller or Guarantor at any telephone number Seller or Guarantor provide to Buyer or from which Seller or Guarantor places a call to Buyer, or any telephone number where Buyer believes it may reach Seller or Guarantor, using any means of communication, including but not limited to calls or text messages to mobile, cellular, wireless or similar devices or calls or text messages using an automated telephone dialing system and/or artificial voices or prerecorded messages, even if Seller or Guarantor incurs charges for receiving such communications.

38. Authorization to Contact Seller by Other Means.   Seller and Guarantor also agree that Buyer, its affiliates, agents and independent contractors, may use any other medium not prohibited by law including, but not limited to, mail, e-mail and facsimile, to contact Seller and Guarantor.  Seller and Guarantor expressly consent to conduct business by electronic means.

32. JURY WAIVER .  THE PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT IN ANY SUIT, ACTION OR PROCEEDING ON ANY MATTER ARISING IN CONNECTION WITH OR IN ANY WAY RELATED TO THE TRANSACTIONS OF WHICH THIS AGREEMENT IS A PART OR ITS ENFORCEMENT, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY.  THE PARTIES ACKNOWLEDGE THAT EACH PARTY MAKES THIS WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS, AND ACKNOWEDGE THEIR RIGHT TO REVIEW THE RAMIFICATIONS OF THIS WAIVER WITH THEIR ATTORNEYS.

33. CLASS ACTION WAIVER .  BUYER, SELLER, AND EACH GUARANTOR ACKNOWLEDGE AND AGREE THAT THE AMOUNT AT ISSUE IN THIS TRANSACTION AND ANY DISPUTES THAT 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 THE OTHER PARTIES AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY.  TO THE EXTENT ANY PARTY IS PERMITTED BY LAW OR A COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT:  (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOT WITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.

Appendix A – List of Fees and Charges

The Agreement provides that Seller shall be liable for the following amounts, in addition to the Purchased Amount of Future Receipts:

1. Origination Fee as set forth on page one.

2. The Wire Fee as set forth on page one.

3. Insufficient Funds Fee: $35.

4. Default Fee: 25% of amount of undelivered Purchased Amount of Future Receipts at the time of the event of Default.

5. All costs incurred by Buyer associated with the filing, amendment or termination of any UCC filings.

6. All costs of collections, including attorney fees and all costs related to the enforcement of any other remedies available to Buyer if the Seller defaults.

AUTHORIZATION AGREEMENT

FOR AUTOMATED CLEARING HOUSE TRANSACTIONS

[ {{BUSINESS_NAME}} ] (“Seller”) hereby authorizes FUNDFI, LLC (“Buyer”) to present automated clearing house (ACH) debits to the following checking account in the amount of fees and other payments due to Buyer from Seller under the terms of that Purchase and Sale of Future Receipts Agreement (the “Agreement”) entered into between Seller and Buyer, as it may be amended, supplemented or replaced from time to time.  Seller also authorizes Buyer to initiate additional entries (debits and credits) to correct any erroneous transfers.  In addition, if an Event of Default (as defined in the Agreement) occurs, Seller authorizes Buyer to debit any and all accounts controlled by Seller or controlled by any entity with the same Federal Tax Identification Number as Seller up to the total amount, including but not limited to, all fees and charges, due to Buyer from Seller under the terms of the Agreement.  

Seller agrees to be bound by the Rules and Operating Guidelines of NACHA and represents and warrants that the designated account is established and used primarily for commercial/business purposes, and not for consumer, family or household purposes.  Seller authorizes Buyer to contact Seller’s financial institution to obtain available funds information and/or to verify any information Seller has provided about the designated checking account and to correct any missing, erroneous or out-of-date information.  Seller understands and agrees that any revocation or attempted revocation of this Authorization will constitute an event of default under the   Agreement for the Purchase and Sale of Future Receipts.  In the event that Seller closes the designated checking account, or the designated checking account has insufficient funds for any ACH transaction under this Authorization, Seller authorizes Buyer to contact Seller’s financial institution and obtain information (including account number, routing number and available balance) concerning any other deposit account(s) maintained by Seller with Seller’s financial institution, and to initiate ACH transactions under this Authorization to such additional account(s).  To the extent necessary, Seller grants Buyer a limited Power of Attorney to take action in Seller’s name to facilitate this authorization.

Transfer Funds To/From:                Name of Bank: {{BANK_NAME}}

        ABA Transit/Routing #:   {{BANK_ROUTING_NUMBER}}

        Checking Account #:   {{BANK_ACCOUNT_NUMBER}}

This authorization is to remain in full force and effect until Buyer has received all amounts due or that may become due to Buyer under the Agreement.

Seller Information:                Seller’s Name:   {{BUSINESS_NAME}}

Signature of Authorized Representative:

Print Name: {{FULL_NAME}}

Title: {{OWNER_TITLE}}

Seller’s Tax ID: {{EIN}}

Date: {{DATE}}