Terms and Conditions
By using our service, you agree to the following terms
TERMS OF SERVICE
For Contractors accepting payments through Axle:
By signing up and continuing to use our services, and accepting payments from us, you hereby agree to our Quick Pay Agreement (see below).
Last updated: February 4, 2019
For Clients who are factoring with Axle:
By signing up and continuing to use our services, and accepting payments from us, you hereby agree to our Account Purchase and Factoring Agreement (see below). Last updated: November 10, 2020
QUICK PAY AGREEMENT
In accordance with the agreement between yourself (“Contractor”) and the company you are accepting payments from (“Broker”) through Axle, and in consideration of the mutual promises and covenants herein, Contractor hereby agrees to the following terms and conditions (the “Quick Pay Terms”).
1. Quick Pay Option. Contractor has the opportunity to receive payment on Contractor invoices in an expedited manner (a “Quick Pay”) via Broker’s optional quick-pay program (the “Quick Pay Program”), which payments will be sent by BusBot Incorporated d/b/a as Axle (the “Axle”) on behalf of Broker. Contractor may elect the Quick Pay Program at Contractor’s sole discretion, provided, however, that Contractor will be ineligible for accepting a Quick Pay if such Contractor is party to a third party factoring agreement unless Contractor provides Broker a written authorization from Contractor’s existing factoring company. Contractor acknowledges and agrees that a Quick Pay will be made directly by Axle to Contractor on behalf of the Broker and that Broker may provide all information regarding Contractor to Axle to facilitate the Quick Pay. By electing to receive a Quick Pay, Contractor hereby agrees to receive all payments due from Broker in this manner under the Quick Pay Program, unless and until this Quick Pay Addendum is discontinued in accordance with the terms herein.
2. Invoicing. After each load delivery, Contractor will submit supporting documentation for each invoice and the full amount of the load, including but not limited to each bill of lading, executed proof of delivery and receipts for any approved related charges (the “Invoice Documentation”). The Invoice Documentation must be clear, legible and free of any discrepancies. Incomplete or illegible Invoice Documentation will delay payment to Contractor. Invoices that have been assigned to a factoring company or invoices that are for loads that have been doubled brokered or have Invoice Documentation indicating loss or damage are not eligible for Quick Pay. Broker may provide the Invoice Documentation to Axle.
3. Payment Method Options. Contractor can select one of the following payment methods below. Unless Contractor specifies to Axle, payments will be made via ACH:
- Electronic Direct Deposit to Contractor’s bank account via ACH. If Contractor selects this option, then Contractor must either link their bank account via Plaid or provide their ACH information with a copy of a voided check. By doing so, Contractor authorizes Axle to initiate credit entries and, if necessary, debit entries to the bank account. This authority remains in full force and effect until Axle has received written notification from Contractor.
- Electronic Direct Deposit to Contractor’s bank account via Wire Transfer. If Contractor selects this option, then Contractor must either link their bank account via Plaid or provide their Wire information with a copy of a voided check. By doing so, Contractor authorizes Axle to initiate credit entries and, if necessary, debit entries to the bank account. This authority remains in full force and effect until Axle has received written notification from Contractor. Axle reserves the right to charge a $3 fee per wire transfer.
- Check sent via USPS. If Contractor selects this option, then Contractor must provide Axle with the address to mail a check.
Payments are made on business weekdays during regular business hours, excluding holidays.
4. Quick Pay Payments. Contractor acknowledges and agrees that the payment due and owing to Contractor and the fee for the Quick Pay Program (the “Quick Pay Fee”) have been negotiated directly between Contractor and Broker and without any participation by Axle. Contractor acknowledges and agrees that Broker will submit to Axle the amount to be paid to Contractor (the “Quick Pay Amount”) in accordance with the agreements between Broker and Contractor (the “Broker/Contractor Agreements”), and Axle is authorized to rely on the Quick Pay Amount provided by Broker. Contractor authorizes Axle to pay Carrier the Quick Pay Amount as directed by Broker, and Axle shall have no liability for any errors in the Quick Pay Amount. Contractor agrees that any dispute regarding the Quick Pay Amount, Quick Pay Fee or amounts due and owing to Contractor shall be between Contractor and Broker, and Axle shall have no liability for any amounts due to Contractor.
5. Termination of Quick Pay Program. Contractor understands that should Contractor wish to alter or discontinue participation in the Quick Pay Program (a “Quick Pay Termination”), Contractor is required to terminate in writing sent directly to the Broker with confirmation of receipt, which shall be effective two (2) business days after receipt by Broker and Axle.. A copy of the Quick Pay Termination must be provided to Axle via email to firstname.lastname@example.org.
6. Entire Agreement. These Quick Pay Terms shall supersede all previous provisions or understandings, either oral or written, expressed or implied, or practices, regarding payment by Axle under the Quick Pay Program. Contractor acknowledges and agrees that all terms of the Broker/Contractor Agreement shall remain in full force and effect, except as the same may be amended by the Quick Pay Program as set forth herein. Axle may at any time make changes to these Quick Pay Terms, as it may, in its sole discretion, deem necessary or desirable. The Quick Pay Program may be terminated by Axle at any time upon notice to the Contractor.
7. Indemnification. Contractor acknowledges and agrees that Axle is a third party service provider for the Quick Pay Program and is not a party to the Broker/Contractor Agreement. Contractor hereby agrees to indemnify, defend and hold harmless Axle and its subsidiaries and affiliates, and each of their respective members, managers, shareholders, officers, directors, employees, agents, attorneys, successors and assigns (collectively, the “Indemnitees”), from and against any and all damages, claims, actions, losses, liabilities and/or obligations (including, without limitation, reasonable attorneys’ fees and disbursements) of any kind or nature imposed upon or suffered by Indemnitees arising from, in, out of, under or pursuant to the Quick Pay Program any Quick Pay made by Axle.
8. Authorization. Contractor agrees to these Quick Pay Terms. By signing up and using Axle services, Contractor confirms that it is not using a factor company or that it is using a factoring company that has authorized a release of accounts receivable and proceeds thereof for this Quick Pay Program. Payment hereunder may be suspended to Contractor upon notification that the Contractor is subject to the terms of a factoring agreement or any other agreement under which Contractor has agreed not to assign or sell its accounts receivable.
ACCOUNT PURCHASE AND FACTORING AGREEMENT
BusBot Incorporated DBA Axle, a Delaware corporation (“Axle“) provides back office support, payment processing and invoice factoring through the purchase of Accounts (collectively the “Factoring Services”) to the Client (“Client“) executing this Account Purchase and Factoring Services Agreement (this “Agreement”), subject to Client’s compliance with all the terms and conditions set forth herein, as well as any other written agreement between Axle and Client related hereto. All capitalized terms not herein defined shall have the meanings set forth in the Uniform Commercial Code, as enacted in the State of Delaware (“UCC”). Client and Axle may be collectively referred to herein as the “Parties” and each a “Party.”
This Agreement is a legally binding contract between the Parties regarding Client’s use of the Factoring Services. Client may request a copy of this Agreement by emailing Axle at email@example.com.
1. FACTORING SERVICES
1.1. Scope of Factoring Services.
1.1.1 Purchase of Accounts. Client agrees to use and appoints Axle as its sole factor. Upon submission of an Account to Axle, Client conveys, transfers, assigns and sells to Axle as absolute owner thereof all right, title and interest in all Client’s present and future Accounts owed by such Account Debtor, together with the proceeds thereof and all of Client’s interest in the goods or services sold by Client which gave rise to such Accounts. Axle in its sole discretion may purchase the Accounts offered for sale by Client. Upon receipt by Axle of an invoice and all supporting documentation required by Axle, including but not limited to bills of lading, proof of delivery, contracts and purchase orders, Axle will notify Client as to the Accounts purchased by Axle (“Purchased Accounts”) through the Axle internet based online account detail (the “Portal”). Client agrees it is engaged in a commercial enterprise and that this Agreement and the Factoring Services are intended to be an account purchase transaction. It is the intention of the Parties that the sales of all Accounts constitute true and actual sales of the Accounts from Client to Axle, and that, upon purchase of a Purchased Account, all right, title and interest to such Purchased Account, legal and equitable, shall pass to Axle.
1.1.2 Notification and Verification. For each Account Debtor owing on an Account submitted by Client to Axle for purchase, whether or not purchased by Axle, all Accounts owed by such Account Debtor shall be paid directly to Axle. Each such invoice evidencing an Account will include a notification by Client that the Account has been assigned and conveyed to Axle and is payable only to Axle. Axle shall have the right to notify all Account Debtors that payment shall be made exclusively to Axle. Axle shall have the right to verify directly with an Account Debtor that each Account is valid, is not disputed, and complies with all representations and warranties regarding such Account as set forth herein and verify that the Account Debtor has the financial ability to pay the Account (an “Eligible Account”). The determination of an Eligible Account shall be made by Axle in its sole discretion. Client gives its irrevocable consent and authorization to Axle to disclose, release and exchange all information regarding Client and to communicate without limitation as to any matters related to Client with any third parties or any other persons claiming an interest or right in or the Collateral.
1.2 Advances; Reserves. For all Eligible Accounts that are purchased by Axle, Axle will advance up to 90% of the invoice amount, subject to Axle’s right to maintain a Reserve. The remaining amount of at least 10% (the “Reserve”), less the Factoring Services Fee and any other Obligations due hereunder, will be paid after Axle receives full payment on the invoice from the Account Debtor. If Axle receives any payment that is not for a Purchased Account, Axle may apply such payment to the Reserve. Axle shall apply all payments received in its sole discretion. The term “Obligations” shall mean, without limitation, all of the following: the aggregate amount of the Accounts purchased by Axle hereunder; debts, liabilities and obligations due to any warranty, representation or covenant and duties of every kind and description that Client owes under this Agreement or otherwise, direct or indirect, absolute or contingent and including those that Axle reasonably anticipates are likely to occur or that may adversely affect Axle’s ability to collect the Accounts in the future; charges or chargebacks arising from disputes or otherwise; costs and expenses, including reasonable attorneys’ fees; any amounts recovered from Axle on account of payments previously made by Account Debtors on Accounts purchased by Axle, including but not limited to any preference claims; and any taxes or penalties or other charges which Axle may be required to pay in connection with this Agreement or any transaction carried out in connection herewith.
1.3 Payments to Third Parties. In addition to the Quick Pay Program (as hereinafter defined), Client irrevocably authorizes Axle to remit directly, in the sole discretion of Axle, on behalf of the Client and without further direction from the Client, payments to service providers involved in the transaction giving rise to an Account, including but not limited to drivers, carriers, dispatchers and/or independent contractors (the “Payees”), from Advances or funds that would otherwise be paid to Client. Client acknowledges and agrees that this payment direction is not an obligation of or guaranty by Axle to make such payments to the Payees.
1.4 Repurchase of Accounts. Client shall repurchase on demand, by payment of the then unpaid face amount of each invoice representing an Account, together with any unpaid fees or other Obligations relating to the Purchased Account, at such time as (i) an Account remains unpaid ninety (90) days from the invoice date; (ii) Axle determines in its sole discretion such Account is no longer an Eligible Account; or (iii) upon an Event of Default.
1.5 Communications. Communications regarding or related to the Factoring Services may occur via a variety of electronic communications mechanisms and Client consents to all such use by the Parties. Client consents to the collection, use and storage of all information related to the Client.
2. FEES. Subject to the terms and conditions of this Agreement, for any Accounts purchased by Axle, Client shall pay Axle a fee equal to 2.95% of the face invoice amount (the “Factoring Services Fee”). Upon an Event of Default, Client shall pay all fees incurred by Axle associated with the administration of the facility hereunder, including but not limited to Axle’s administrative and operational fees, due diligence and the preservation of the Collateral. Axle has the right to change Factoring Services Fee at any time, in its sole discretion, upon notice thereof to Client.
3. GRANT OF SECURITY INTEREST.
3.1 Collateral. As a protective measure in the event of a characterization of the sale of the Accounts as a loan, and in order to secure all Obligations of Client to Axle, Client hereby grants to Axle a first priority and exclusive security interest in all of Client’s existing and later acquired assets, including but not limited to all Accounts, Chattel Paper (whether tangible or electronic), contracts and contract rights (including purchase orders) Documents (including bills of lading and proof of delivery), Equipment, Instruments (including promissory notes), Inventory, Investment Property, Letter of Credit rights, Letters of Credit, all General Intangibles, all Reserves, and all books and records of Client (whether tangible or electronic) relating to the assets set forth herein, whenever acquired and whether now or hereafter existing, wherever located and all Proceeds of each of the foregoing (collectively the “Collateral“). Client hereby grants Axle the authority to file a UCC Financing Statement in connection with this grant of security interest in the Collateral. Any unauthorized termination or unauthorized attempt by Client to terminate Axle’s UCC Financing Statement could result in, at Axle’s sole discretion, a $2,500 fee per occurrence.
3.2 Secured Obligations. The Collateral shall secure the payment of all Obligations at any time owing to Axle, fixed or contingent whether arising under this Agreement, by operation of law or otherwise. Client agrees that, with respect to the security interest granted by this Agreement, Axle shall have all of the rights and remedies of a secured party as provided by the UCC in addition to any and all remedies provided by any other applicable law and all rights and remedies provided for by this Agreement and by any other agreement; it being understood and agreed that that the security interest in the Collateral granted hereby secures any and all present and future Obligations of Client to Axle. In addition, in order to satisfy any of the Obligations due Axle, Client irrevocably authorizes Axle in its sole discretion to initiate electronic debit or credit entries through the ACH system to any deposit account maintained by Client. Client hereby agrees and authorizes Axle to establish an automated clearing house debit arrangement to facilitate such ACH transfers, and Client shall indemnify and hold Axle harmless from any claims or damages that might arise therefrom.
4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Client and those principals and agents authorized by Client to submit Accounts to Axle each make the following representations, warranties and covenants set forth herein to Axle upon the execution of this Agreement, each of which shall be deemed to have been made upon the submission to Axle of an Account:
4.1 Client (a) is an entity duly organized, validly existing and in good standing under the laws of the state of its formation and is qualified and authorized to do business and is in good standing in all states in which such qualification and good standing are necessary or desirable; (b) has its principal place of business as set forth herein at the Client’s address and will not change its address without first giving Axle written notice thereof; (c) is not and has at no time been affiliated with and does not own, control, or exercise dominion, in any way whatsoever, over any Account Debtor; and (d) is not insolvent.
4.2 In connection with the Accounts (a) Client has offered for sale all Accounts of Client; (b) Client is the sole and absolute owner of each Account offered for sale, each Account offered for sale is sold free and clear of any liens, security interests or encumbrances and all supporting documentation for each Account has been provided to Axle; (c) Client has the full legal right to sell, assign and transfer each Account and such sale, assignment and transfer thereof does not contravene or conflict with the terms of any other agreement, commitment or instrument to which Client is a party; and upon Client’s delivery of each Account, there will vest in Axle all of Client’s right, title and interest in and to such Account; (d) all terms governing each Account are accurately reflected in the invoice and supporting documentation and each Account is undisputed and represents a sum certain owed by an Account Debtor, without offset or counterclaim and no Account offered for sale has any express or implied condition giving use to a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment or any right to return basis; (e) each invoice clearly sets forth the assignment of the Account to Axle; (f) each Account represents Client’s bona fide sale, delivery and acceptance of merchandise or full and complete performance of service to an Account Debtor; (g) Client shall not change the payment terms to any Account Debtor; (h) no Account purchased hereunder or any payment made with regard thereto will at any time during or after termination of this Agreement be avoidable by any bankruptcy trustee under Title 11 of the United States Bankruptcy Code or by any creditor, whether under state or federal law, as a preference, fraudulent conveyance or otherwise; (i) each Account shall be absolutely enforceable against the Account Debtor in accordance with the express terms of the invoice, whether as to price, terms delivery, guaranty or quality; (j) Client has or will immediately and in any event not more than twenty-four (24) hours upon receipt of such information by Client, notify Axle of any dispute, return, rejection, loss of or damage, any request made by an Account Debtor for an extension of time to pay or any fact or circumstance with respect to any Account which is likely to effect the sum owing thereon or any other fact or circumstance that is likely to give rise to any Event of Default; (k) no Account or product or services billed pursuant to an Account shall be subject to a warranty or any future performance conditions; (l) no Account is for work in progress or represents progress billing; and (m) Client has verified the foregoing prior to submission of the Account to Axle.
4.3 In connection with the records of Client: (a) each fact in any financial record, statement, books and records or other document Client has provided to Axle, either before or after the execution of this Agreement, is true and accurate and no information has since come to Client’s attention to materially affect same; and (b) Client has contemporaneously as to each Account purchased, made the proper entry on its books and records recording the absolute sale of such Accounts to Axle. Within three (3) days of a request from Axle, Client shall provide Axle with a copy of its (i) financial statements; (ii) current customer list and/or debtor aging; and (iii) federal income tax returns; and (iv) other information regarding Client’s business affairs as Axle may request.
4.4 In connection with operations of Client: (a) no financing statement identifying Client as Debtor, except as to Axle as Secured Party, is currently existing or may or has at any time during the term of this Agreement been authorized or has been filed in any public office; (b) it is fully responsible for the acts and omissions of its employees; (c) no Collateral has been sold outside the ordinary course of Client’s business; (d) each individual that submits Accounts has the power and authority to do so on behalf of Client; (e) it shall at all times execute and deliver to Axle any and all documents that Axle deems desirable or necessary to effectuate the provisions of this Agreement; (f) it has no delinquent tax obligations; (g) it has not delinquent labor or pension obligations; (g) the proceeds of the advances shall be used solely by Client for working capital purposes in the ordinary course of business; (h) it will not lend any sum of money whatsoever to any individual or entity (other than advances to Client’s drivers from time-to-time in the normal course of Client’s business), nor act as guarantor, surety or endorser without Axle’s prior written consent; and (i) it will notify Axle immediately upon any voluntary or involuntary bankruptcy petition under the United States Bankruptcy Code filed by or against Client or any guarantor, or any assignment for the benefit of creditors by Client or any guarantor.
4.5 If Client receives an overpayment or other payment of any kind, Client shall immediately contact Axle (at firstname.lastname@example.org or 1-855-250-4142) and pay such funds, within one business day after receipt by you, to Axle via ACH transfer and if not so remitted by Client, Axle shall have the right to charge a fifteen percent (15%) misdirected payment fee.
4.6 Client is duly registered as required by law and has obtained and will maintain all required licenses, registrations, insurance and/or surety bonds as required or necessary to operate its business. If Client is a carrier, Client is registered with FMCSA as a for-hire motor Carrier of property in interstate and foreign commerce pursuant to 49 U.S.C. § 13902. If Client is a broker, Client is duly registered with the appropriate government agencies as a freight broker.
4.7 Client represents and warrants that it will act in a thorough and professional manner, consistent with high professional and industry standards through individuals with the requisite training, background, experience, technical knowledge and skills.
5. OPERATIONS AND PROCEDURES
5.1 Axle as Service Provider. Axle is an independent provider, performing the Factoring Service on behalf of Client. The relationship under the Agreement is principally that of seller and purchaser. Client agrees that there is not now and Client will at no time seek or attempt to establish, any fiduciary or confidential relationship by Axle as to Client. Nothing in this Agreement or the transactions contemplated hereunder will be construed as establishing an employment relationship, joint venture, joint enterprise, partnership, or any other relationship between the Parties.
5.2 Portal. Invoices shall be submitted by Client via the Portal. Information regarding the transactions occurring hereunder will be maintained by Axle and may be available for review by Client through the Portal. Client acknowledges that information available on the Portal is real time and subject to further adjustment by Axle pursuant to the terms herein. All of Client’s rights of access to Axle’s online internet available services shall be provisional and may be terminated upon an Event of Default. The information Axle makes available to Client online constitutes and satisfies any duty to respond to a Request for an Accounting or Request regarding a Statement of Account pursuant to § 9-210 of the UCC.
When using particular Factoring Services, Portal or the website maintained by Axle, Client shall be subject to any posted rules applicable to the Factoring Services or materials that may contain terms and conditions in addition to those in this Agreement. All such guidelines or rules are hereby incorporated by reference into this Agreement as the “Terms of Service.” Axle reserve the sole right to either modify or discontinue the Portal or the Website, including any of the Portal or website’s features, at any time with or without notice to Client. Axle will not be liable to Client or any third party in connection therewith. Any new features that augment or enhance the then current Portal or website shall also be subject to these Terms of Service.
5.3 Authorization to Axle. Client irrevocably authorizes Axle at Client’s expense, to exercise any of the following powers until all of the Obligations have been paid in full:
5.3.1. Receive, take, endorse, assign, deliver, accept and deposit, in the name of Axle or Client, proceeds of any Collateral;
5.3.2. Take or bring, in the name of Axle or Client, all steps, actions, suits or proceedings deemed by Axle necessary or desirable to effect collection of or other realization upon the Accounts;
5.3.3. With respect to any of the following established or issued for the benefit of Client, either individually or as a member of a class or group, file any claim under (i) any bond or (ii) under any trust fund;
5.3.4. Pay any sums necessary to discharge any lien or encumbrance which is senior to Axle’s security interest in any assets of yours, which sums shall be included as Obligations hereunder;
5.3.5. Process and provide signature (physical or electronic) on the Accounts and associated paperwork for securing cargo and billing purposes;
5.3.6. Obtain the necessary certifications, authorities, and other official documents related to Client as required and applicable.
5.3.7. In Axle’s own name or on Client’s behalf, with Client to be bound thereby, extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and upon any terms or conditions (collectively, a “Settlement”), any and all Accounts and discharge or release any Account Debtor or other obligor (including filing of any public record releasing any lien granted to you by such Account Debtor), without affecting any of the Obligations, and Client acknowledges that all Settlements shall be presumed to be commercially reasonable, and the burden of proof shall be on Client with respect thereto.
5.4 Third Party. Client consents to Axle’s use of third party service providers in providing the Factoring Services and administrating the transactions hereunder. Client acknowledges and agrees that Axle may (a) sell participation interests in or assign all or any portion of its rights, obligations and interest under this Agreement and in the Collateral to any Person; (b) contract with affiliates of Axle to provide servicing of the Client facility and exercise Axle’s rights hereunder.
5.5 Authorized Persons. Client shall identify at least one individual that is authorized (a) to submit Accounts and execute documents on behalf of Client in connection with the performance of this Agreement (excluding authority to change deposit account information); and (b) to change deposit account information and direct the remittance of funds, provided, however, that Axle at all times in its sole discretion may rely on authorization received by an Axle employee or agent.
5.6 Agency. Nothing in this Agreement shall be construed to constitute Axle as agent for Client or to obligate Axle to assume any of Client’s obligations with respect to any Account. Axle shall not assume or create any liability for any error or omission or delay occurring in a settlement, collection or payment of any Account. Notwithstanding the foregoing, if Client fails to perform any obligation that Client was required to perform in order to maintain the obligation of an Account Debtor to make payments on an Account, Axle may perform or retain others to perform such obligation, at Client’s sole expense and such expense shall constitute part of Client’s Obligations described hereunder
5.7 Attorney-in-Fact. In order to facilitate the terms of this Agreement, Client hereby authorizes and appoints Axle as its lawful attorney‑in‑fact to collect and receive all payments from all Customers and to exercise at any time any of the following powers: (i) to receive, endorse, and deposit in Axle’s name all payments received from Customers; (ii) to transmit to any party notice that Client has granted Axle a security interest in the Accounts or that any Account has been sold to Axle; (iii) to institute any proceedings deemed by Axle necessary to effect collection of any Account; (iv) to sign Client’s name on any financing statement, or any amendment or continuation statement thereto with respect to any Account; and (v) to take any action deemed reasonable to fulfill the terms of this Agreement.
5.8 Right of Use of Data.
5.8.1 To the extent permitted under applicable law, Client expressly acknowledges and agrees that Client’s information and data that are provided to or made available to Axle under this Agreement, including, but not limited to, information or data related to Client’s business, owners, employees, officers, and agents (hereinafter referred to as “Client Data”) may be necessary or appropriate for Axle to perform under this Agreement. Client agrees that Axle maybe collect, store, compile, process, combine, analyze, utilize, license to third parties and use (hereinafter referred to as “Use” or “Used“) Client Data in connection with performing under the Agreement.
5.8.2 Subject to the terms of this Agreement and to the extent provided under applicable law, Client expressly acknowledges and agrees that Axle may Use Client Data for (i) the Axle’s own research, analysis, and business development purposes or (ii) to provide analysis on performance, underwriting, due diligence, credit risk analysis, funding information decisions or purposes, and general business trends in the industry (collectively “Company Services“) which Use shall be the sole property of Axle, provided, however, Axle’s Use of such Client Data shall not disclose to any third party any personally identifiable information of the Client or persons associated with Client or confidential or proprietary information of Client. Axle will take reasonable commercial efforts to data anonymize Client Data that is aggregated or combined with anonymized client data received from other Clients to ensure the protection of personally identifiable information or confidential or proprietary information of Client.
5.8.3 Client shall grant a non-exclusive, worldwide, royalty-free license to any Client Data used by Axle related to or in connection with “Company Services” to improve Axle’s products and services.
5.8.4 Client represents and warrants to Axle that, except as provided in this Agreement: (i) all Client Data provided by Client to Axle under this Agreement is the sole and exclusive property of Client; and (ii) Client owns any and all any intellectual property rights embodied in or associated with such Client Data.
5.8.5 Subject to this Agreement, Client Data created by or sourced from Client including, rights related thereto shall be and remain the property of Client.
5.8.6 All Client Data Used by Axle under the Agreement shall be protected and treated in the same commercially reasonable manner of protection as like or similar confidential information of Axle in light of the nature of the Client Data disclosed by Client in the course of operating under this Agreement.
6. INDEMNIFICATION. Client will indemnify and hold harmless Axle and its shareholders, officers, directors, partners, employees, agents, representatives and affiliates (each being an “Indemnified Party“) from and against any and all losses, claims, actions, damages and liabilities arising under or related to this Agreement or the relationship created by this Agreement, including but not limited to (i) any action by a third party against Axle that is based on a claim that any actions performed under this Agreement or any agreements between Client and a third party, infringe, misappropriate or violate such third party’s rights; (ii) any action by a third party against Axle that is based on any act or omission of Client; or (iii) any claim by an independent contractor, including but not limited to a claim under the Quick Pay Program. Client agrees to indemnify and hold Axle harmless from any loss or liability arising out of the assertion of any avoidance claim and shall pay to Axle on demand the amount thereof. This Section 6 shall survive termination of this Agreement.
7. LIMITATION OF LIABILITY. Client’s sole remedy for any breach alleged to have been committed by Axle of any obligation or duty owed under the Agreement, any other agreement between Client and Axle or any duty or obligation arising out of or related to the Agreement shall be limited to the amount in the Reserve, which Reserve shall be the amount five (5) days after the time notice in writing of such breach is first given to Axle. IN NO EVENT WILL AXLE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF AXLE HAS BEEN INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
8. TERM AND TERMINATION
8.1. Term. This Agreement will commence upon execution or other acceptance of this Agreement by Client and will remain in full force and effect until terminated in accordance with the terms of this Agreement.
8.2. Termination. Except as otherwise set forth in this Agreement, either Party may terminate this Agreement at any time, for any reason or no reason, upon at least thirty (30) days written notice to the other Party (a “Notice of Termination”), whereupon this Agreement shall terminate on the date of termination specified in such notice, provided, however, that a Notice of Termination from Client shall not be effective unless all Obligations have been indefeasibly paid in full to Axle on or before the termination date set forth therein. Any attempted termination of this Agreement other than as set forth herein shall be ineffective, and this Agreement shall continue in full force and effect as if such attempted termination was not made. In addition, any Notice of Termination by Client and notwithstanding payment in full of all Obligations by Client, is conditioned on Client’s execution and delivery, to Axle, of a general release in a form satisfactory to Axle. Client understands and agrees that this provision constitutes a waiver of its rights under §9-513 of the UCC. Axle shall not be required to record any terminations or satisfactions of any of Axle’ security interests unless and until Client has executed and delivered to Axle said general release and Client shall have no authority to do so without Axle’s express written consent
9.1. Events of Default. The following will constitute an “Event of Default” hereunder:
9.1.1. Client defaults in the payment of any Obligations;
9.1.2 Client breaches any provision, representation, warranty or covenant set forth herein or any warranty, representation or covenant is not true, accurate or correct in any respect, or Client fails to perform any duty hereunder;
9.1.3 Client fails to submit any Account to Axle or fails to submit accounts for a period of twenty-one (21) consecutive days for purchase by Axle or fails to respond to communications initiated by Axle within three (3) business days;
9.1.4 any injunction, attachment, judgment or lien shall be filed, occur, arise of attach to any portion of the Collateral or as to Client, or Client shall fail to pay any federal or state tax or fail to timely file any tax forms when due;
9.1.5 the discontinuance or suspension of Client’s present business operations, or a material adverse change occurs in Client’s financial condition, business or operations, or there is a change in the control of the ownership or management of Client;
9.1.6. Client or any guarantor of the Obligations becomes subject to any debtor-relief proceedings or other insolvency proceedings or are unable to meet debts as they mature;
9.1.7. Any guarantor of the Obligations fails to perform or observe any of such guarantor’s obligations to Axle or shall notify Axle of its intention to rescind, modify, terminate or revoke any guaranty of the Obligations, or any such guaranty shall cease to be in full force and effect for any reason whatever; or
9.1.8. Axle for any reason, in good faith, deems itself insecure with respect to the prospect of repayment or performance of the Obligations and/or this Agreement.
9.2. Effect of Event of Default. Upon the occurrence of an Event of Default, and in addition to any other rights and remedies of Axle: (a) at the sole discretion of Axle, all Obligations owed to Axle shall be immediately due and payable upon demand by Axle; (b) Axle shall have the right to charge an additional five percent (5.0%) Factoring Services Fee (the “Default Rate”), which Default Rate shall be assessed on the face value of the outstanding Accounts and which Default Rate shall be in addition to any other fees due to Axle hereunder; (c) Axle shall have the right, at its discretion, to cease further advances and/or to terminate this Agreement; (d) Axle shall have the right to enforce all lien rights of Client; (e) Client hereby irrevocably authorizes any financial institution in which it has an account that so much of the funds necessary to cure Client’s breach as set forth in writing by Axle to such financial institution shall be set aside to and for the exclusive benefit of Axle; and (f) Axle may set off and apply the Collateral to the payment of Client’s Obligations in such order and manner as Axle in its sole discretion shall determine, or settle, compromise or release, in whole or in part, any amounts owing on the Collateral, or prosecute any proceeding with respect to the Collateral, or extend the time of payment of any or all of the Collateral, or issue credits regarding the Collateral or sell, assign and deliver the Collateral (or any part thereof), at public or private sale and apply the net cash proceeds resulting from the exercise of any of the foregoing rights or remedies to the payment of the Obligations, in such order as Axle in its sole discretion, may elect, and Client and any Guarantor hereof shall remain liable to Axle for any deficiency. Client shall reimburse Axle on demand for all costs incurred by Axle in the (i) enforcement for payment of the Accounts; (ii) all fees, costs and expenses of any kind and nature which Axle may incur in the filing notices, making lien or title examinations; and (iii) protecting, maintaining, preserving or enforcing agreements relating to the Accounts or any other matters related to this Agreement, all of which shall be added and deemed part of Client’s Obligations hereunder.
10. QUICK PAY PROGRAM
In the event Client offers a quick pay option to its independent contractors (the “Quick Pay Program”), Client agrees that Axle may pay independent contractors, including but not limited to carriers and dispatchers, participating in such Quick Pay Program directly from Advances under the terms and conditions herein. Axle must receive the following documentation regarding each independent contractor participating in the Quick Pay Program: (A) for the initial Quick Pay Program set up on the Axle on-line system: (1) bank account information; (2) copy of a voided check from the independent contractor bank account; (3) Quick Pay Terms and Conditions executed by independent contractor; and (4) upon request by Axle, a copy of the agreement between Client and the independent contractor; and (B) for each payment request by Client under the Quick Pay Program: (1) the amount owed to the independent contractor for each invoice based on the terms and conditions of the agreement between the Client and independent contractor; and (2) valid independent contractor invoices with supporting documentation; and (C) at all times: (1) a copy of any Notice of Assignment under UCC §9-406 received by Client in connection with any independent contractor participating in the Quick Pay Program; (2) notice of a Quick Pay Program termination by an independent contractor; and (3) any other documentation that Axle may request in connection with the independent contractor (collectively the “Contractor Quick Pay Documentation”). Client covenants and agrees that the Contractor Quick Pay Documentation and all information provided by Client to Axle regarding each independent contractor shall be true, accurate and correct in all respects. Client agrees that Axle may communicate directly with each independent contractor and may obtain directly from independent contractor any documentation needed to effectuate the quick pay payments, including but not limited to documentation required by Axle to make payments directly to such independent contractor on behalf of Client and to ensure that Axle has a priority secured interest in all Accounts. Client shall ensure that all Accounts submitted to Axle for which Client is requesting direct payment to an independent contractor under the Quick Pay Program shall be Eligible Accounts as defined herein. Client acknowledges and agrees that in the event Client has received a Notice of Assignment under UCC §9-406 or other legally enforceable direction of payment as to any independent contractor, such independent contractor is not eligible to receive a direct payment from Axle and Client will not submit Contractor Quick Pay Documentation for such independent contractor.
Client hereby irrevocable authorizes and directs Axle to remit Advances that would otherwise be paid to Client directly to an independent contractor participating in the Quick Pay Program. Client acknowledges and agrees that Axle may remit such payments at the sole discretion of Axle and as and to the extent funds are otherwise available to be paid to Client. Client further acknowledges and agrees that each payment made to an independent contractor is to be paid by Axle from funds otherwise due and owing Client under this Agreement and is not a guaranty of payment or an assumption by Axle of any obligations owed by Client to an independent contractor. Client acknowledges and agrees that Axle, in its sole discretion, may pay an independent contractor even if funds are not currently due to Client and Client shall be liable to Axle for any such payments. Client shall remain liable for the full and indefeasible payment and performance of the Obligations under the Factoring Agreement. Client agrees to pay any associated fees relative to the Quick Pay Program. Nothing set forth in this provision limits the rights of Axle as set forth in Section 1.3 hereof.
11. GENERAL PROVISIONS
11.1 Assignability. Client may neither assign nor transfer any of its rights nor delegate any of its duties under the Agreement. Axle shall have the right at any time to assign and delegate all or any portion of its rights and duties under this Agreement.
11.2 Entire Agreement. This Agreement contains the entire understanding of the Parties hereto and relating to the subject matter hereof and is the final and complete expression of their intent.
11.3 Amendments. No amendment, modification or waiver, oral or otherwise, with respect to any provision will be effective unless the same is in writing and executed by an officer of Axle and no email correspondence shall be considered a writing for purposes of an amendment, modification or waiver hereof.
11.4 No Waiver. No failure or delay on Axle’s part in exercising any right, power or remedy granted to Axle hereunder will constitute or operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right set forth herein.
11.5 Counterparts. This Agreement may be executed in any number of counterparts, each of which so executed shall be deemed an original and constitute one and the same agreement and may be by facsimile or by electronic transmission of a portable document format file or equivalent (also known as a “PDF file”), which shall be effective as delivery of a manually executed original counterpart of this Agreement. Client may also execute this Agreement by electronically accepting this Agreement.
11.6 Severability. In the event any one or more of the provisions contained in the Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and the Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
11.7 Construction. This Agreement is made and entered into for the sole benefit of the Parties hereto and the Parties have read this Agreement, understand its contents, and represent that each has full and complete authority to sign this Agreement and that the execution, delivery and performance hereunder has been duly authorized by each Party as well as each of the Parties hereto has had an opportunity to consult with its respective legal counsel prior to executing this Agreement.
11.8 No Reliance. Client specifically acknowledges and agrees this Agreement is executed freely and voluntarily and without reliance upon any statement or representation of Axle or any of Axle’s attorneys, agents, or other representatives in connection therewith except as set forth herein and there are no and Client is not relying on any written or oral representations not expressly written in this Agreement.
11.9 Force Majeure. In the event Axle is unable to carry out its obligations under this Agreement due to reasons beyond its reasonable control, it is agreed that the obligations of Axle hereunder shall be suspended during the continuance of such inability, Axle shall not be liable for damages, and Client shall not be entitled to any refund of amounts paid, provided, however that such cause shall be remedied as soon as commercially practicable.
11.10 Election of Remedies. Except as expressly set forth in this Agreement, the exercise by Axle of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity.
11.11 Notices. All notices required or permitted under this Agreement will be in writing and delivered by (i) confirmed facsimile transmission, (ii) courier or national recognized overnight delivery service, or (iii) certified mail, and in each instance will be deemed given upon receipt. All notices to Axle will be sent to:
205 Hudson St, Floor 7
New York, NY 10013
All notices to Client will be sent to the address provided by Client on the signature page hereof or otherwise in writing and acknowledged by Axle. Communications which by their nature relate to the day-to-day activities of the Factoring Service may be delivered in electronic form, provided, however, that no email correspondence shall constitute written notice as may be required under this Agreement.
11.12 Modification of this Agreement. Axle reserves the right, at Axle’s sole discretion, to modify this Agreement on a going-forward basis at any time, with or without prior notice, and such changes will be effective upon the earlier of Client’s (i) first use of the Factoring Services with actual notice of such change, (ii) consent to such changes via a written amendment hereto, or (ii) 30 days from posting of such change on the Portal. Client’s use of the Factoring Services following the date that any such change becomes effective constitutes an agreement to be bound by the modified Agreement. If Client does not agree to the modified Agreement, its sole and exclusive remedy is to terminate this Agreement in accordance with the termination provisions hereof.
11.13 Waiver. The waiver of any breach of any provision of this Agreement will not constitute a waiver of any subsequent breach of the same nature and does not constitute a waiver of other provisions hereof. A waiver is only effective if it is in writing and signed by the waiving Party.
11.14 Governing Law, Jurisdiction, Waiver of Jury Trial and Attorney’s Fees.
11.14.1 Governing Law & Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware in all respects, including but not limited to the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement, without reference to any conflict of law provisions or decisions. Client hereby consents to the exclusive jurisdiction of any state or federal court sitting in Kent County, Delaware (the “Chosen Forum”) in any action or proceeding the subject matter of which arises out of or relates, directly or indirectly, to this Agreement and each of the Parties agree that all claims in respect to any action or proceeding shall be heard and determined exclusively in the Chosen Forum. Client further waives any objection or right it may have to seek a change of venue based on lack of personal jurisdiction, improper venue, forum non conveniens or otherwise. Client hereby waives personal service of the summons, complaint and other process issued in any such action or suit and agrees that service of such summons, complaint and other process may be made by certified mail addressed to Client at the address of Client set forth in this Agreement and that service so made shall be deemed completed upon the earlier of Seller’s actual receipt thereof or 3 days after deposit in the United States mail, proper postage prepaid. Nothing in this Agreement shall be deemed or operate to affect the right of Axle to (i) serve legal process in any other manner permitted by law, or (ii) to preclude the enforcement of any judgment or order obtained in such forum or the taking of any action under this Agreement to enforce same in any other appropriate forum or jurisdiction; or (iii) proceed against the Collateral in any other appropriate forum or jurisdiction.
11.14.2 Waiver of Jury Trial. EACH OF THE PARTIES AND ANY OBLIGOR HEREUNDER ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT OR ANY DOCUMENT ARISING HEREUNDER OR WITH RESPECT TO THE TRANSACTION CONTEMPLATED HEREIN WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES. ACCORDINGLY, EACH OF THE PARTIES AND ANY OBLIGOR HEREUNDER KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION BASED HEREON, INCLUDING BUT NOT LIMITED TO ANY CLAIM, COUNTERCLAIM, CROSS-CLAIM, THIRD PARTY CLAIM, DISPUTE, DEMAND, SUIT OR PROCEEDING ARISING OUT OF OR RELATED HERETO WHETHER, UNDER OR IN CONNECTION WITH THE AGREEMENT OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, INCLUDING ANY COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY AND AGREES THAT ALL SUCH PROCEEDINGS SHALL BE TRIED BEFORE A JUDGE AND NOT A JURY.
11.14.3 Attorney’s Fees. Client agrees to reimburse Axle for all reasonable attorney’s fees, court costs and other expenses incurred by Axle arising under or related to this Agreement. Notwithstanding the existence of any law, statute or rule, in any jurisdiction that may provide Client with a right to attorney’s fees or costs, Client hereby waives any and all rights to hereafter seek attorney’s fees or costs thereunder.
11.15 EACH PARTY WAIVES THE RIGHT TO LITIGATE IN COURT ANY DISPUTE AS A CLASS ACTION, EITHER AS A MEMBER OF A CLASS OR AS A REPRESENTATIVE, OR TO ACT AS A PRIVATE ATTORNEY GENERAL.
12. PERSONAL GUARANTY. Each undersigned Guarantor, an individual residing at the address set forth under such Guarantor’s signature below, for valuable consideration and to induce Axle to enter this Agreement, hereby personally, absolutely and unconditionally guarantees the payment to Axle of all amounts due by Client hereunder and performance of Client’s representations, warranties and covenants set forth herein or in any modification, addendum or substitution thereof (the “Guaranteed Obligations”). If Client fails to pay any Obligation under this Agreement when due, the Guarantor agrees to pay such Obligation on demand. Each Guarantor acknowledges it is in the direct interest and advantage of such Guarantor to assist the Client to procure funds, credit or other assistance from Axle due to such Guarantor’s position in and economic relation with the Client. The liability of a Guarantor hereunder is not conditional or contingent upon the genuineness, validity, sufficiency or enforceability of this Agreement. Each Guarantor shall be primarily liable and have joint and several liability for such obligations and Axle may invoke the benefits of this Guaranty without pursuing any remedies against Client or any other guarantor and without proceeding against any Collateral for such Guaranteed Obligation. Each Guarantor authorizes Axle at any time, without notice or further consent of such Guarantor, to take any actions (a) regarding or impacting the Collateral, (b) modifying, amending or extending this Agreement or all or any part of the Obligations, (c) forbearing, waiving or compromising the Obligations or the Collateral, (d) any neglect, delay, omission, failure of refusal by Axle to take or prosecute any action regarding this Agreement, the Obligations or enforcement thereof, (e) acceptance of partial payments on the Obligations, and/or (f) exercising any rights and remedies available to Axle, and agrees the liability of each Guarantor shall not be released diminished, reduced or affected thereby. To secure payment under this Guaranty, each Guarantor does hereby grant to Axle a security interest in and to any and all assets of such Guarantor, including but not limited to all Accounts, Chattel Paper, contracts and contract rights, Documents, Equipment, Instruments, Inventory, Investment Property, Letter of Credit rights, Letters of Credit, and all General Intangibles (including without limitation, payment intangibles and software), whenever acquired and whether now or hereafter existing, wherever located and all Proceeds of each of the foregoing, all of which are hereinafter collectively called the “Guarantor Collateral” and each Guarantor hereby authorizes Axle to file any such financing statements and do such other acts and things as Axle may reasonably deem necessary or customary or desirable in order to establish and maintain a valid, attached and perfected security interest in the Guarantor Collateral. Each Guarantor hereby subordinates any and all encumbrances on the Collateral and right of Guarantor to receive any payment from Client in favor of Guarantor. This Guaranty shall in all respects be a continuing, absolute and unconditional guaranty of payment and not of collection, and shall not be subject to any counterclaim, setoff, deduction or defense based upon any claim that Guarantor may have against any person or the Client. This Guaranty and each Guarantor’s Guaranteed Obligations hereunder are irrevocable. The Guaranteed Obligations are independent of any obligations of the Client under this Agreement. Each Guarantor expressly waives (i) notice of acceptance by Axle of this guaranty, the offer of guaranty or any other notice which may be required related to acceptance of this guaranty, (ii) notice of the failure of Client to make any payment on the Obligations and notice of the failure of any party to pay Axle any Account or other indebtedness held by Axle as Collateral; (iii) notice of any adverse change in Client’s condition, financial or otherwise; (iv) notice of any and all transactions occurring under this Agreement or otherwise relating or affecting this Guarantee; (v) demand, protest, notice of dishonor or nonpayment or presentment for payment of any note, agreement or other evidence of the Obligations; and (vi) notice of any kind in bringing and prosecuting any action, diligence in connection with the collection of any Obligation. Guarantor expressly waives any and all defenses, substantive or procedural to the guaranty set forth herein. Guarantor shall reimburse Axle for all reasonable attorney’s fees, court costs and other expenses incurred by Axle arising under or related to this Agreement. Guarantor agrees to be bound by all provisions hereunder, including but not the Chosen Forum.