GUIDELINES FOR MARKETPLACE BY PRODUCEPAY PRODUCE INVOICE PURCHASES
- Applicability. These Guidelines shall apply to any sale or offer to sell invoices or Produce-related accounts receivables (as further defined in these Guidelines) by a seller (“Seller”) on the Marketplace By ProducePay (the “Marketplace”) to Produce Pay Inc. (“Company”) (Seller and Company referred to collectively as “Parties”), where the Parties have entered into a written Marketplace Factoring Contract (a “Factoring Contract”). The Factoring Contract shall expressly incorporate these Guidelines.
- Nature of Factoring Relationship. Seller operates in the produce industry and is engaged in the business of growing, buying and selling perishable agricultural commodities (“Produce”) in domestic and/or foreign commerce into the United States market, and the Produce is regulated under PACA regardless of whether the Seller holds a USDA-issued PACA license. Seller desires and intends to sell certain of its Produce-related Accounts and Receivables in order to mitigate the impact of slow payment practices, eliminate the risk of nonpayment and otherwise improve its cash flow by converting certain of its Produce-related Accounts and Receivables (“AR”) to cash, thereby making said assets more freely available. Seller desires and intends to sell, assign, convey, and transfer to Company all or the entirety of its beneficial interests in and to certain of its Produce-related Accounts and Receivables for sales generated on the Marketplace, along with any and all of its PACA Trust Rights appurtenant thereto, including without limitation its Rights to receive prompt payment and to enforce its beneficial interests in and to the U.S. Account Debtor’s PACA Trust Assets. Company is engaged in the business of purchasing Produce receivables and other contract-based rights to receive payments at a discount for the benefit of its private investors. Seller is a member of the Marketplace and sells or intends to sell Produce to other members of the Marketplace.
- The Platform. Company has developed and maintains an innovative, on-line software platform (the “Platform”) that allows Produce Pay to work directly with growers, sellers, and buyers of Produce at shipping point, providing record keeping, marketing, accounting, and other services appurtenant to its Produce dealings. The Platform and the contracts that Produce Pay establishes with its customers and trading partners are carefully designed to facilitate and incentivize trading in Produce in a manner that is more efficient, stable and profitable for participants in the nationwide Produce distribution chain. Company has also made the Platform available to provide and facilitate alternative financing options (i.e., non-lending based) for distributors and producers of Produce, including the factoring of invoices as described herein. The Platform enables factoring transactions for the purchase of Produce-related AR and shall be utilized by the Parties in the following manner (which manner of operation may be changed by Company from time to time in its sole discretion):
- The Seller shall log in to the Platform to notify Company that it has an AR it wishes to sell to Company through the Platform (i.e., offer Eligible Accounts or Receivables to Company for sale).
- The Seller shall upload to the Platform certain documents related to each AR offered to Company for Purchase in order to allow Company to verify the creditworthiness of the proposed Account Debtor, case quantities, proof of title, absence of liens; confirm receipt and condition of Produce and the accuracy of the related Final Invoice from the Account Debtor, and to otherwise determine whether the Seller’s AR satisfies Company’s specifications as stated in Section 3 and otherwise further defined[i] below (i.e., registration of an AR, Account Debtor’s execution of the Notice of Assignment in Exhibit B, etc.) (hereinafter collectively “Registration”).
- By registering and otherwise uploading Information and documents related to each AR, the Seller certifies that it has clear title to such AR and is thereby legally capable of transferring clear title to Company. THE SELLER CANNOT REGISTER ON THE PLATFORM SHIPMENTS FOR WHICH IT HAS NOT RIGHTFULLY OBTAINED OR NO LONGER POSSESSES CLEAR TITLE.
- At its sole discretion, Company can then, upon such notification by the Seller of Registration of an AR through the Platform, remit the AR Purchase Price to the Seller and take all of Seller’s rights, interests, and title to and ownership of the AR.
- Upon Company’s Purchase of an AR through the Platform, the Account Debtor will thereby be required to pay the Company for such AR.
- With respect to each AR, Seller shall notify the Account Debtor(s) that the Company is the payee on all Produce transactions comprising the AR. Said notice of change in payee to the Account Debtor shall be in the form and manner satisfactory to the Company in its sole discretion. See Exhibit B.
- The Seller acknowledges and agrees that Company is a bona fide purchaser acting in good faith with respect to all of its interactions with the Seller, including, without limitation, all transactions contemplated by this Contract; the Seller further acknowledges and agrees that all amounts due and owing to Company in connection with this Contract, including, without limitation, and any other agreed upon fees, expenses, and amounts due to Company in connection with any purchased AR are duly earned at the time Company remits the Initial AR Purchase Price to Seller and the same was obtained for fair and reasonable value from the Seller;
4. Account or Receivable Specifications: As of the Effective Date of this Contract and during the Contract Period, a Receivable or an Account, in order to be an eligible Account or an eligible Receivable, must meet the following specifications at the time it comes into existence:
- The Account or Receivable arose from Seller’s performance of services or an outright sale of goods, including Produce, in the ordinary course of Seller’s business;
- Seller’s invoice to its Account Debtor for Produce must be for one or more of the commodities recognized by the USDA as being subject to PACA;
- The Account or Receivable is for the sale of Produce and Seller’s Account Debtor is a Member of the Marketplace, the holder of a valid USDA issued PACA license, and was so licensed at the time of Produce transaction identified in said Account or Receivable. If the Account Debtor is not the holder of a valid USDA issued PACA license, Account Debtor must be exempt from PACA’s licensing requirements (e.g., grower selling its own Produce);
- Seller issued its invoice(s) to its Account Debtor concurrent with or subsequent to its tender/delivery of the Produce identified on said invoice(s);
- Seller’s invoice(s) to its Account Debtor contains PACA’s default payment terms of Net 10 days and states the same of the face of said invoice;
- If Seller’s invoice(s) to its Account Debtor identifies payment terms other than PACA’s default payment terms of Net 10 days on its face, Seller and its Account Debtor shall have properly executed a pre-transaction written agreement for the use of payment terms other than Net 10 days, but in no event shall said payment terms exceed thirty (30) days. Seller shall provide Company with a Genuine copy of any pre-transaction agreement with its Account Debtor;
- The payment terms on the face of Seller’s invoice to its Account Debtor must be consistent with the payment terms set forth in the parties’ pre-transaction written agreement to modify said payment terms;
- Seller issued an invoice(s) to its Account Debtor within thirty (30) days of the tender or delivery date of the Produce identified on the Account or Receivable;
- Seller has adopted verbatim or will adopt terms substantially similar to Company’s recommended credit terms, trouble policy, and other additional contract terms to be included either on the face of each of Seller’s Confirmation of Sale, invoices to its Account Debtors, or a separate written and signed credit application or agreement. Company’s recommended trouble policy and additional contract provisions for the recovery of interests and attorneys’ fees are attached hereto as Exhibit A along with a sample Notice of Intent to Preserve PACA Trust Benefits, all of which are incorporated herein by this reference;
- If the Seller does not have a valid USDA-issued PACA license, Seller timely issued its Notice of Intent to Preserve PACA Trust Benefits, as set forth in 7 U.S.C. § 499(e)(c)(3) and 7 C.F.R. § 46.46(f) to its Account Debtor (See Exhibit A);
- If the Seller has a valid USDA-issued PACA license, Seller’s timely issued invoice(s) to its Account Debtor included, verbatim, the statutory trust preservation language set forth in 7 U.S.C. § 499(e)(c)(4) on its face (See Exhibit A);
- The Account or Receivable is not subject to setoff, credit, allowance, or adjustment by the Account Debtor except as disclosed to Company and identified in Seller’s pre-transaction written contract or agreement with said Account Debtor;
- Seller has not waived its Right to have its Account Debtor obtain a timely USDA inspection of any Produce subject to any claim for shortage, damage, condition defect, or failure to make grade;
- The Account or Receivable is not subject to any dispute or claim by the Account Debtor or any third party that may adversely affect its stated value or the timeliness of the Account Debtor’s obligation to promptly pay the full amount of the Account or Receivable within its stated or otherwise applicable payment terms;
- The Account or Receivable is not subject to any prior assignment, claim, lien, or security interests that would prevent Seller from selling, assigning, conveying, or otherwise transferring all or the entirety of its interests in the Account or Receivable to Company;
- Seller’s sale and transfer of the Account or Receivable to Company will not adversely or otherwise affect the rights of any other party;
- The Account or Receivable did not arise from the performance of services or the sale of goods, including Produce, to a Creditor, supplier, employee, or a parent, subsidiary, or affiliate of Seller and no part of said Account or Receivable may be or is capable of being paid via credit or offset against any amount Seller may owe the Account Debtor for any reason;
- The Account or Receivable has been sold, assigned, transferred, and conveyed to Company pursuant to a Bill of Sale in form and substance satisfactory to Company and the fully executed version is in the possession, custody, and control of Company;
- The Account or Receivable does not arise under of any contract or agreement with the United States or any department, agency or instrumentality of the United States unless Seller has executed any instruments and taken all steps required by Company to ensure that all monies due and that may become due under such contracts or agreements shall be assigned to Company and notice thereof is given to the government under the Federal Assignment of Claims Act;
- The Account or Receivable is not subject to any prohibition (under applicable law, by contract, or otherwise) against its assignment and sale and nothing requires notice of or consent to any assignment to Company unless all such required notices have been given, all such required consents have been obtained, and all other procedures have been complied with, such that the Account or Receivable shall have been duly and validly sold and assigned to Company;
- No notice, actual or constructive, of bankruptcy, insolvency, financial distress, dishonored checks, or other adverse change of the Account Debtor’s financial condition that may adversely affect its ability to timely and fully satisfy its payment obligations as evidenced by the Account or Receivable has been received by or is otherwise known to Seller or its Representatives; and
- Company has not notified Seller that Company has determined, in its sole discretion, that the Account, Receivable, or Account Debtor is unsatisfactory to Company for any reason (e.g., Account Debtor failed to satisfy Company’s due diligence standards, etc.).
- The sales transaction between Seller and its Account Debtor were subject to additional contract terms providing for Seller’s recovery of interest and attorneys’ fees upon default. These additional contract terms should be illustrated by a written and signed document between Seller and its Account Debtor (e.g., signed credit agreement). See Exhibit A.
5. Sale of Accounts or Receivables: During the Contract Period set forth in a Contract, Seller shall, subject to the terms and conditions of this Agreement, present and otherwise offer to sell, transfer, and assign to Company Eligible Accounts and Receivables generated through sales on the Marketplace by and through Company’s Platform. Such sales shall be initiated by Seller on the Marketplace by informing Company of Seller’s intent to sell an AR from a Marketplace transaction to Company, and Company shall then assess the AR to confirm that it meets the requirements set forth in these Guidelines.
6. Payment Terms. Company shall pay Seller for all Purchased Accounts or Receivables as soon as practicable upon Seller’s completion of all the following tasks via the Platform:
- Seller shall provide Company with Genuine original copies of the Documents of Title evidencing the Account Debtor’s purchase and receipt of conforming goods free of any claims or objections, along with Genuine copies of any and all subsequent revisions, modifications or other alterations to any and all such documents;
- Seller shall provide Company with Genuine original copies of the Confirmation of Sale, Final Invoice(s), credit memo(s), subsequent adjusted or corrected invoices, and other documents evidencing Seller’s sale and delivery, and the Account Debtor’s purchase and receipt, of conforming goods and all subsequent revisions, modifications or other alterations to all such documents;
- Seller’s Account Debtor shall provide Company with notice or confirmation of its receipt of Seller’s conforming goods without claim or objection and confirmation of its receipt of Seller’s Final Invoice. Account Debtor confirmations to Company may be received via phone, e-mail, the Platform, or other method satisfactory to Company in its sole discretion;
- Seller to notify its Account Debtor, in a form and manner satisfactory to Company, of Company’s Purchase and Seller’s sale and Assignment of its right to receive all payment(s) upon a Purchased Account or Receivable to Company and directing the Account Debtor to remit all payments on or upon said Purchased Account or Receivable directly to Company;
Debtor to return an executed copy of the Notice of Assignment letter to Company in substantially the same form as attached hereto as Exhibit B;
- Any and all documents requested or required by Company in writing;
- Seller executes and delivers to Company, via the Platform, an Assignment of its entire interests in and Rights to the Purchased Account or Receivable, and
- Seller executes and delivers to Company, via the Platform, a Schedule of Accounts or Receivables (i.e., Bill of Sale) identifying the Purchased Accounts or Receivables.
Company shall make any and all payments due to Seller hereunder via wire transfer or ACH payment with Seller bearing the actual cost of any such transaction, if any. As such Seller hereby expressly agrees and authorizes Company to deduct the actual costs of any wire transfer or ACH payment from any amount being paid to Seller.
6. Factoring Volume. Seller is not obligated to present or otherwise offer to sell to Company any specified volume or amount of Produce related Accounts or Receivables currently possessed or that Seller may receive (i.e., after arising) during the Contract Period. To this end, Company reserves the absolute right, in its sole discretion, to refuse or decline to Purchase any AR Seller presents or otherwise offers to Company for sale.
7. AR Purchase Price: Upon Company’s evaluation, acceptance, and election to Purchase AR from Seller, Company shall promptly pay Seller for said AR in the amount identified in the Key Terms & Information chart above.
8. Assignment and Transfer of Purchased Accounts or Receivables: Seller covenants and agrees to transfer and assign all or the entirety of its Rights, title and interests in and to any Accounts or Receivables sold to Company and expressly agrees and understands that any such transfer and assignment relates to Seller’s Right to receive payment on such Account or Receivable and does not constitute a delegation of any other contractual Right, performance obligation or responsibility, warranty obligation, or other duty, express or implied, Seller may owe its Account Debtor.
Seller further covenants and agrees that the transfer and assignment of the Purchased Accounts or Receivables and all appurtenant Rights to receive or collect payment related thereto (e.g., payment enforcement rights, Account Debtor default remedies, etc.) to Company is a material part of these Guidelines and said transfer and assignment of such Rights are required for Company to be able to obtain the benefit of the bargain contemplated in these Guidelines.
Seller covenants and agrees that any and all of the Purchased Accounts or Receivables sold, transferred, and assigned to Company hereunder and identified in the Schedule of Accounts or Receivables, expressly including by not limited to any and all PACA trust rights appurtenant thereto, shall cease being property of Seller upon Seller’s receipt of the Purchase Price and, thereafter, shall not be subject to reclamation, recovery, repudiation, disaffirmation, redemption, or re-characterization by Seller, Seller’s creditors, a bankruptcy trustee, a receiver, debtor, debtor-in-possession, or similar Person.
9. Collection of Accounts: Seller covenants and agrees to cooperate with and assist Company in the collection of any and all Accounts or Receivables sold, transferred, and assigned to Company.
Seller and Company understand and agree that Company bears all Credit Risk associated with any Purchased Account or Receivable and that Company is and shall be solely responsible for collecting the proceeds of all Purchased Accounts or Receivables from Seller.
Notwithstanding the full and complete transfer of Credit Risk on all Purchased Accounts or Receivables (absent fraud) from Seller to Company, Seller agrees to cooperate in good faith with Company in the collection of Purchased Accounts or Receivables as a party with an interest in the business relationship with the Account Debtor. As opposed to Company’s interests in the Account Debtor, which is limited to the collection of all Purchased Accounts or Receivables and the enforcement of any and all Rights related thereto.
10. Collateral: Seller hereby understands and acknowledges that the Purchased Accounts or Receivables shall serve as Company’s collateral, security, and Right to collect payment from the Account Debtor identified on each Purchased Account or Receivable. However, Company shall have the right to record a financing statement in the United States and/or any other jurisdiction where the Produce may originate from or travel to solely for the purpose of providing public notice to third parties that the Purchased Accounts or Receivables have been acquired by Company to establish Company’s priority interest in the Purchased Accounts or Receivables should an ownership or priority issue arise with a third party.
11. Good Faith: Seller and Company agree to perform their respective obligations under the Contract in good faith and will deal with each other fairly.
12. Malfeasance Guaranty. Seller’s principal(s) shall each execute an unconditional guaranty in favor of Company that ensures the validity, as opposed to collectability, of the Purchased Accounts or Receivables and imposes personal liability upon Seller’s principal(s) for any malfeasance (i.e., deliberate misrepresentations or fraudulent behavior) in connection with any transaction(s) contemplated or consummated hereunder. A true and correct copy of the Parties’ Malfeasance Guaranty is attached hereto as Exhibit C and incorporated herein by this reference.
13. Independent Contractor: With respect to the sale of the Accounts or Receivables identified herein, Seller is not an agent or servant of Company and it shall be deemed and held as an independent contractor and Company shall have no control over him in the performance of a Factoring Contract.
14. Warranties. Seller, to induce Company to Purchase certain AR and with full knowledge that the truth and accuracy of the foregoing are being relied upon by Company in determining whether to purchase certain of Seller’s AR, hereby warrants, covenants, agrees, and unconditionally guarantees that:
- Seller is the absolute owner of each AR it presents or offers to Company for sale and it possesses the full and complete legal right, title, and authority to sell, transfer, deliver and assign the same to Company;
- The Accounts and Receivables described herein are free from any and all undisclosed liens and encumbrances that may cause or give rise to a third-party claim to payment for or from the same (e.g., bank lien, factor lien, etc.);
- Seller is not dealing with or utilizing the services of any other factor or lender that would give rise to a lien or other encumbrance involving any of its Accounts and Receivables;
- The price of each Eligible Account or Receivable is as set forth in the Schedule of Accounts or Receivables and the same is not in dispute or subject to further adjustment or change;
- Seller has no knowledge that the price, quantity, or quality of the goods or services that are the subject of each AR is or will be disputed;
- Each AR identified in any Schedule of Accounts or Receivables qualifies as or otherwise fully satisfies all conditions of specifications of an Eligible Account or Receivable at the time Company purchases the AR from Seller;
- Seller has and will comply with all laws and regulations (state or federal) having application to the goods sold, including Produce, or services provided to Seller’s Account Debtors identified on any Account or Receivable sold to Company pursuant to the terms of a Factoring Contract;
- The Account Debtor’s obligation to pay on any AR sold to Company is not contingent upon the fulfillment of any obligation or contract, past or future, and any and all obligations required of Seller by its Account Debtor to receive full payment upon each such Account or Receivable have been fully and satisfactorily performed;
- Each Eligible Account or Receivable identified on any Schedule of Accounts or Receivables is: (i) based on the actual sale and delivery of conforming goods, including Produce, and or the provisioning of services actually rendered; (ii) based on payment terms not to exceed thirty (30) days; (iii) not a sale to a creditor, parent, subsidiary, or an affiliate of Seller; (iv) presently due and owing to Seller; (v) not past due or in default; (vi) or has not been previously sold, assigned, transferred, or pledged to a third party; (vii) not a consignment sale or bill and hold transaction; (viii) free and clear of any liens, security interests, and encumbrances other than liens, security interests, or encumbrances in favor of Company;
- There are no defenses, offsets, claims, counterclaims, or third-party claims against any of the Purchased Accounts or Receivables and Seller has made no agreement with the Account Debtor under which the Account Debtor may claim any allowance, deduction, adjustment, or discount, except as otherwise stated and disclosed to Company in the Schedule of Accounts and Receivables;
- At the time Seller sells, and Company Purchases, an Eligible Account or Eligible Receivable to Company, Seller has no knowledge that the Account Debtor or Obligor on any such Eligible Account or Eligible Receivable has failed to timely pay any Accounts, Receivables, or other payment obligations to either Seller or, if known, to Account Debtor’s suppliers, vendors, investors, banks, mortgage companies, or any other Person during the year preceding Seller’s sale of any Eligible Account or Receivable to Company;
- Seller does not owe the Federal Government or any state government any unpaid back taxes or any unpaid back taxes that cannot be paid in full with the initial sale and assignment of certain of its Eligible Accounts or Eligible Receivables;
- Seller is not subject to a tax lien by any Federal or state government, agency, division, or instrumentality;
- Seller shall take no action or permit any action to be taken to contradict or refute any notification to Seller’s Account Debtors of Company’s ownership of the Purchased Accounts or Receivables; and
- Seller’s sale of certain of its Accounts and Receivables to Company will improve Seller’s overall cash or financial position and enable it to accommodate increased sales or reduce expenses.
15. Contract Renewal or Termination: The Contract Period in a Factoring Contract shall be automatically extended for consecutive one (1) year periods on each twelve (12) month anniversary of the Effective Date, unless either party shall have provided written notice of termination to the other party not less than thirty (30) days prior to the expiration of the current Contract Period; however, nothing in this provision shall authorize the unilateral early termination of a Factoring Contract. To this end, Seller hereby understands and agrees that its unilateral early termination of a Factoring Contract will trigger Seller’s obligation to pay Company an early termination fee calculated pursuant to Section 16 herein. Any such fee shall be due by Seller and payable to Company within fourteen (14) calendar days of Seller’s delivery or tender of its notice of termination to Company without further notice or demand from Company. Absent a timely written notice of termination, this Contract shall automatically renew for consecutive one (1) year periods. This Contract shall immediately terminate if and when a Seller’s membership in the Marketplace is terminated.
16. Survival. Seller acknowledges and agrees that following the termination of aFactoring Contract (whether by Seller’s Termination Election or the expiration of the Contract Period), Seller’s obligations in Paragraphs 3 (Account or Receivable Specifications), 7 (Purchase Price), 8 (Assignment and Transfer of Accounts and Receivables), 12 (Malfeasance Guaranty), and 14 (Warranties) above, shall continue and survive in order to satisfy Company’s Rights hereunder.
17. Notices. All notices to be given under a Factoring Contract shall be considered delivered when served on the other party via facsimile transmission, e-mail or Certified United States mail, postage prepaid, addressed as set forth in the Factoring Contract for the Seller, and to Company as follows:
Company: Produce Pay, Inc.
c/o Ben Dusastre, President
888 W. 6th Street, Suite 200
Los Angeles, CA 90017
(a) Amendments. No amendments, modifications, or additions to a Factoring Contract shall be binding unless in writing and signed by both parties, except that Company may amend these Guidelines unilaterally from time-to-time. Company shall provide notice to Seller of amendments to the Guidelines, and the amendments shall apply to any sale of invoice or accounts receivables that takes place after notice has been provided to Seller.
(b) Applicable Law. This Contract shall be governed in all respects, whether as to validity, construction, capacity, performance or otherwise, by the laws of the State of Delaware not including the body of law known as conflict laws. In any dispute relating to this Agreement, the parties hereto admit venue and submit themselves to the nonexclusive jurisdiction of the state or federal courts located either in the State of California. The Parties each agree to waive any and all objections to that Court’s exercise of both subject matter and personal jurisdiction over each of them to fully determine any such controversies or claims. Both Parties further agree the prevailing party shall be entitled to reasonable attorneys’ fees and all costs of collection or enforcement. To any extent that the United Nations Convention on the International Sale of Goods applies to the transactions contemplated under this Agreement, the parties hereby agree that the provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
(c) Covid-19 as Force Majeure Statement. The Parties understand and agree that the Covid-19 pandemic, along with various civil orders requiring masks, limiting the size of public or private gatherings, imposing curfews, restricting dine-in eating establishments, etc., has been known to the Parties since the first quarter of 2020 and the impacts of the same, including, but not limited to, market decline, have been fully evaluated by the Parties in connection with their election to execute and otherwise enter into this Agreement.
(d) Force Majeure: Neither party shall be responsible for the non-performance of any part of this Agreement caused by act of God, lawful government order, fire, strikes, riots, earthquake, hurricane, war, explosion, rebellion, insurrection, labor disputes, accidents to machinery, or other emergency reasonably beyond the control of the affected party.
(e) Indemnity. Seller hereby agrees to fully indemnify, fully provide for the cost of any defense of Company’s choosing, and to hold Company completely harmless from any and all liability arising out of Seller’s performance or non-performance of any service or sale of any good, including Produce, to an Account Debtor or for Seller’s failure, for any reason, to comply with Seller’s warranties as set forth in this Contract or any related Bill of Sale or any express or implied warranty associated with any of Seller’s obligations herein or Seller’s obligations to its Account Debtors, or for any suit or countersuit challenging the validity of this Contract or the validity of any statutory or contractual rights intended to be transferred to Company pursuant to the Contract, including any suit or countersuit challenging Company’s title to any AR that Company acquires from Seller.
(f) Assignment: Company may assign its rights hereunder, or any portion thereof, by delivering to the Seller a copy of the instrument of assignment. The assignment shall become effective upon Seller’s receipt of the instrument of assignment. Absent a written agreement with Company, Seller has no right to assign its rights hereunder.
(g) This Agreement shall be executed in English. In the event this Agreement is translated to Spanish text or other language, the English text shall be controlling. In the event of a conflict between the provisions of the Spanish text or other translated language and the English text, the provisions of the English text shall be controlling.
(h) Binding Effect. These Guidelines and a Factoring Contract shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assigns, heirs and general representatives.
- Severability. In the event any provision or portion of these Guidelines is held to be invalid, void or unenforceable, the remainder of the Contract shall, nonetheless, remain in full force and effect and in no way shall be affected, impaired or invalidated.
- Entire Agreement. These Guidelines, together with any internally referenced or attached exhibits, Addendum(s), Bills of Sale, or Malfeasance Guaranty, constitutes the entire agreement between the parties and supersedes all prior understandings, previous negotiations, terms sheets, and any memoranda or understanding with respect to the AR originated on the Marketplace that is offered by Seller for sale to Company. To the extent there is any conflict between these Guidelines and the Marketplace by Producepay Membership Agreement, the terms of these Guidelines shall prevail. To the extent there is any conflict between these Guidelines and a Factoring Contract, the terms of the Factoring Contract shall prevail.
- No Strict Construction. The language used in a Factoring Contract or these Guidelines shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction will be applied by any Person or court of competent jurisdiction and none of the terms contained herein shall be construed against any single party hereto as the drafter of these Guidelines or a Factoring Contract.
19. Limitation of Liability. Company shall not be liable for any damages caused by the consumption of the Produce. Further, Company’S LIABILITY ARISING OUT OF THIS AGREEMENT, THE TERMINATION THEREOF, AND/OR SALE OF THE PRODUCe SHALL BE LIMITED TO THE SALES COMMISSION ACTUALLY RECEIVED in the 12 months prior to the event that gave rise to such liability. Company SHALL NOT BE LIABLE TO the Seller OR ANY OTHER PARTY FOR ANY DAMAGES CAUSED BY FAILURE TO MAKE SHIPMENT ON ANY ORDER OR CONTRACT OR FOR DELAY IN DELIVERY OF ANY PRODUCE. IN NO EVENT SHALL Company BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LOST PROFITS OR ANY OTHER SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN OR IN THE WARRANTY FOUND IN THE PRODUCE.
20. Intellectual Property.
(a) The Seller agrees that Company owns all right, title, and interests in the Platform and Company’s rights to letters patents, Trademarks, other trademarks, registrations and approvals, inventions, copyrights, know-how, trade secrets and other intangible property concerning Produce (collectively, “Intellectual Property”) and the Seller shall acquire no rights in any Intellectual Property. The use by the Seller of any of Intellectual Property is authorized only for the purposes herein set forth, and upon termination of this Agreement for any reason such authorization shall cease.
(b) The Seller hereby irrevocably assigns to Company any right of title or interests that the Seller may have or acquire in any modifications, designs or improvements of Company’s Intellectual Property by its employees or agents.
(c) The Seller shall not dispute or contest or assist others to dispute or contest the validity of any of Company’s Intellectual Property. In addition, if the Seller so disputes or contests or assists others to dispute or contest the validity of any of Company’s Intellectual Property, Company shall have the right to terminate this Agreement immediately upon written notice to the Seller.
(d) The Seller shall promptly and fully notify Company of any actual, threatened or suspected infringement of any Intellectual Property of Company which comes to the Seller’s attention.
21. PROPRIETARY INFORMATION; Non-competition, Non-solicitation and Non-disparagement
(a) Confidentiality. The Seller shall strictly maintain and shall cause its officers, directors, employees, and agents to so maintain, the confidentiality of the terms of this Agreement and any trade secrets, know-how, producer or distributor lists, financial information or other proprietary information of Company or its affiliates which is not a matter of public knowledge, which, for the avoidance of doubt, shall include information regarding the operation of the Platform and any documentation thereof (collectively, the “Proprietary Information”) during the Term of a Factoring Contract and for two (2) years thereafter (such period, the “Restricted Period”). For purposes hereof, Proprietary Information shall not include information disclosed by Company or its Affiliates to the Seller which the Seller can establish (a) was known by the Seller or any of its divisions, subsidiaries or affiliates prior to the date thereof; (b) was received by the Seller from a third party having the lawful right to disclose such information; or (c) is in the public domain through no fault of the Seller or its officers, directors, employees, affiliates or agents. The Seller shall not make or retain any copies of any Proprietary Information that may have been entrusted to it and shall use Proprietary Information solely for purposes of exercising its rights and carrying out its obligations under these Guidelines. Upon termination of a Factoring Contract for any reason, the Seller shall immediately cease using any Proprietary Information.
(b) Non-competition, Non-solicitation and Non-disparagement. The Seller shall not:
(i) during the Restricted Period, directly or indirectly, own, operate, manage, control, participate in, be employed by, consult with, advise or engage in services for any person or entity engaged in Company’s business of providing an online software platform to facilitate alternative financing options for producers and distributors of Produce;
(ii) during the Restricted Period, directly or indirectly induce or attempt to induce any customer, client, vendor, supplier or other business relation of or to the Company or any of its Affiliates, to cease doing business with the Company or any of its Affiliates, to reduce or otherwise adversely change its business with the Company or any of its Affiliates, or in any other way deliberately interfere with the relationship between the Company or any of its Affiliates, on the one hand, and any such customer, client, vendor, supplier or other business relation, on the other hand; or
(iii) after the Effective Date, directly or indirectly, make any written or oral statement concerning the Company that is harmful to the Company, its business or the business reputation of the Company.
22. The parties further acknowledge and agree that, should a party so elect, the electronic signature of a party (whether digital or encrypted) to a Factoring Contract shall be as valid as an original wet ink or manual signature of such party and shall be effective to both authenticate and legally bind such party to a Factoring Contract. The parties further agree that any electronically signed document (including this Agreement) shall be deemed (i) to be “written” or “in writing,” (ii) to have been actually signed by the party or parties electing to utilize electronic signatures, and (iii) to constitute a record established and maintained in the ordinary course of business and an original written record when printed from electronic files.
23. By executing a Factoring Contract, each party expressly represents: (a) it has carefully read these Guidelines and all documents to which the Guidelines make reference; (b) it understands all of its terms of each such document and had the opportunity to consult with counsel of its own choosing, and; (c) it has executed a Factoring Contract, with fully authority and the intent to be bound hereto, as an act of its own free will.
Additional Contract Terms: (include all 3 paragraphs below either on the face of your invoices or in a Confirmation of Sale with each Account Debtor)
Any claims for shortage, damage or condition will not be honored unless the problem is reported in writing to Seller within twenty-four (24) hours of receipt of the product and, unless Seller waives in writing, a timely USDA inspection is performed on the product.
The perishable agricultural commodities listed on this invoice are sold subject to the statutory trust authorized by section 5(c) of the Perishable Agricultural Commodities Act, 1930 (7 U.S.C. 499e(c)). The seller of these commodities retains a trust claim over these commodities, all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.
Buyer acknowledges and agrees that interest shall accrue on any past-due account balance at the rate of 1.5% per month (18% per annum), or at the maximum allowable rate under applicable law, until such time as full payment is received. In the event any collection action or other legal proceeding becomes necessary to enforce any right under this agreement, Buyer agrees to pay all (i.e. 100%) costs of collection or enforcement, including reasonable attorneys’ fees.
Sample – NOTICE OF INTENT TO PRESERVE TRUST BENEFITS
VIA EMAIL & FACSIMILE
ACCOUNT DEBTOR NAME
CITY, STATE AND ZIP
FROM: SELLER’S NAME
Please take notice that we wish to preserve our trust benefits on the following invoices for perishable agricultural commodities sold to [ACCOUNT DEBTOR] (the “Debtor”):
|Invoice No.||Date Shipped||Commodity||Date Payment Due||Amount Due|
Total principal past due and unpaid: AMOUNT. True and correct copies of the unpaid invoices are attached hereto as Exhibit A and incorporated herein by this reference. Payment was due from Debtor on DATE.
CERTIFICATE OF SERVICE
On DATE a true and correct copy of this Notice of Intent to Preserve Trust Benefit, along with copies of the aforementioned unpaid invoices, was served upon ACCOUNT DEBTOR.
888 W 6th St #200
Los Angeles CA 90017
(888) 886 9457
U.S. ACCOUNT DEBTOR POINT OF CONTACT NAME
U.S. ACCOUNT DEBTOR NAME
U.S. ACCOUNT DEBTOR ADDRESS
U.S. CITY, STATE, ZIP
Re: Notice of Assignment and Payment Instructions
Dear U.S. ACCOUNT DEBTOR:
Please be advised that, via written contract dated [INSERT CONTRACT DATE], [INSERT CUSTOMER NAME HERE] (the “Seller“) has sold, conveyed, voluntarily transferred, and otherwise assigned all or the entirety of its right, title, and interests in and to its perishable agricultural commodity (“Produce”) related accounts receivable, expressly including any and all PACA trust rights appurtenant thereto, if any, to Produce Pay Inc. (“Produce Pay”).
This being the case, [U.S. ACCOUNT DEBTOR] is hereby put on notice that Produce Pay is the only lawful and proper payee, beneficiary, and recipient of all sums owing in connection with Seller’s Produce related transactions with you. Any failure or refusal to cooperate in the payment or remittance of all sums owing in connection with such Produce transactions to Produce Pay is unlawful and constitutes a breach of trust.
Considering the foregoing, Produce Pay hereby directs you to pay all invoices, and other amounts which may hereafter become due by you to Seller, to Produce Pay at the address set forth below. Only full and prompt payment to Produce Pay will satisfy any outstanding debt, trust obligation, or PACA obligation evidenced by Seller’s invoice(s) to you in connection with any Produce transaction. Payment to the Seller or any other party will NOT relieve you of the obligation to pay Produce Pay.
To protect against the risk of double liability, please make sure that all checks are be payable to Produce Pay and remitted only to:
Produce Pay Inc.
888 W 6th St #200
Los Angeles CA 90017
Note: Please specify Seller’s invoice number in the notes section/memo line on the check made payable to: “Produce Pay, Inc.”
Please notify your accounting department of the foregoing. If you make payment to the Seller or anyone other than Produce Pay, such payment will not constitute settlement of the account and may subject you to double liability. These instructions may not be modified or supplemented without written notice from Produce Pay.
Should you have any questions regarding these instructions, please call or e-mail Produce Pay at the phone number or e-mail address listed below:
Phone: (888) 886 9457
Thank you for your immediate attention to this notice and your cooperation with its payment directions. To ensure all our trading and supply chain partners are fully informed, we ask that you confirm your receipt and understanding of this notice by signing below and returning an executed copy to us via email to: email@example.com with a copy to Seller.
Yours very truly:
/s/ Ben Dusastre
Produce Pay, Inc.
Acknowledged and Agreed to this ____ day of _______ 2022:
U.S. ACCOUNT DEBTOR NAME
By: ______________________________ (sign)
CONTINUING AND UNCONDITIONAL MALFEASANCE GUARANTY
THIS CONTINUING AND UNCONDITIONAL MALFEASANCE GUARANTY dated this ____ day of __________, 2022 (this “Guaranty”) is executed by Produce Pay, Inc., a Delaware corporation, (“Company”), and _______________ (principal’s name), a _______________resident, principal of SELLER, and in his personal capacity (“Principal”):
A. SELLER, by and through Principal, wishes to make certain of SELLER’s (“Seller”) Produce related accounts and receivables available to Company for purchase, and Company has agreed, subject to the terms and conditions of its ____________, 2022 Factoring Agreement (the “Contract”) with Seller, to purchase certain Eligible Accounts and Receivables from SELLER.
B. In order to induce Company to purchase SELLER’s Eligible Accounts and Receivables, Principal hereby agrees to personally and unconditionally guaranty the validity of each of SELLER’s Eligible Accounts and Receivables.
C. Pursuant to the Contract, SELLER is or will be obligated, among other things, to provide certain notifications to the Account Debtors on Purchased Accounts or Receivables and to continue to provide (i.e., post-sale) collection services to Company on Purchased Accounts or Receivables pursuant to the Contract.
D. The parties agree and understand that the validity of the Purchased Accounts or Receivables and SELLER’s agreement to, in good faith, provide Company with post-sale collection services related to said Purchased Accounts or Receivables are material to the Contract.
E. Nothing in this Guaranty is intended to or shall be construed as Principal’s guarantee that the Purchased Accounts or Receivables are collectable. Rather, the intent of the Contract is that all risk of non-payment or slow payment with respect to the Purchased Accounts or Receivables transfers from SELLER to Company upon the execution of the relevant Bill of Sale and SELLER’s receipt of good funds in the amount identified on said Bill of Sale.
NOW, THEREFORE, in consideration of the foregoing recitals, SELLER’s receipt of the Purchase Price identified in any and all applicable Bills of Sale, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Principal and Company hereby covenant and agree as follows:
1. Recitals; Definitions. The recitals set forth above are true and correct and incorporated herein by reference. Certain terms, capitalized but not defined herein shall have the meanings given to them in the Contract.
2. Unconditional Personal Guaranty. Principal hereby personally and unconditionally guarantees:
(a) All AR registered with the Platform represent bona fide sales of SELLER and bona fide and existing obligations of SELLER’s Account Debtors identified in the relevant Schedule of Accounts or Receivables;
(b) All AR arose out of SELLER’s sale of Produce or its provisioning of services to the Account Debtor identified on the relevant Schedule of Accounts or Receivables in the ordinary course of SELLER’s business;
(c) No AR, as well as any and all related or supporting documents, shall be forged or fictitious in any particular or manner whatsoever;
(d) All documents or other evidence SELLER submits to Company in connection with any transaction or obligation set forth in or contemplated under the parties’ Contract shall be original unaltered copies and true and correct copies of any and all modifications, alterations, or other changes to said original documents;
(e) All AR presented to Company for Purchase qualifies as Eligible Accounts or Receivables under the Contract and neither SELLER nor Principal shall knowingly, present for sale, sell, assign, or transfer to Company any Account or Receivable that does not qualify as an Eligible Account or Receivable;
(f) If requested, SELLER will utilize its relationship with its Account Debtor to asset in Company’s normal collection efforts with respect to all AR;
(g) That neither SELLER nor Principal shall receive, hold, or otherwise fail to immediately turn over to Company the proceeds of or any payments related to any and all AR;
(h) All accountings, reports, or other documents of every nature whatsoever submitted by SELLER or Principal to Company shall be true, complete, and correct in all material respects;
(i) To save and hold Company harmless and fully indemnify Company from and against any and all loss, damage, or injury (direct or indirect) which it may in any manner sustain in whole or in part by reason of any: (1) fraud, deceit, or criminal act committed by either the undersigned or SELLER, including any of its officers, directors, employees, or agents, or (2) intentional and materially false, erroneous, misleading, inaccurate, incorrect, or incomplete statement or Information made or furnished to Company by either the undersigned or SELLER;
(j) To save and hold Company harmless and fully indemnify Company from and against: (1) any and all losses, costs, claims, expenses, penalties and fines, fees, and liabilities of any kind resulting from a breach by SELLER of the Contract; (2) a claim by any Person arising in connection with a failure by SELLER to comply in all respects with the Contract; (3) any action taken by SELLER resulting in damages to Company, and; (4) any and all legal fees and other costs and expenses incurred by Company in connection with or in any way related to the performance of SELLER’s obligations under the Contract.
3. Obligations Created. The undersigned waive any and all notices or demand regarding the creation, renewal, extension, or accrual of any obligation hereunder or of Company’s reliance upon this Guaranty. Principal’s individual obligations, and each of them, shall conclusively be deemed to have been created, contracted, or incurred in reliance upon this Guaranty.
4. Cumulative Rights. The undersigned each agree and understand that all rights and remedies of Company hereunder or under the Contract shall be separate and cumulative and may be exercised singly or concurrently with the exercise of any one remedy not acting as an exclusion to or bar upon Company’s exercise of any other remedies available to Company in law or equity and Company’s exercise of or failure to exercise any remedy shall not limit or prejudice any other legal or equitable remedies Company may possess.
5. Acknowledgment. The undersigned hereby acknowledges and agrees that the Contract or any related documents (e.g., Schedule of Accounts or Receivables, Bill of Sale, etc.) may be altered, extended, modified, released, or cancelled pursuant to the terms of the Contract and the undersigned agree that this Guaranty and Principal’s liability hereunder shall be in no way affected, diminished, or released by any such alteration, extension, modification, release, or cancellation.
6. Indemnification Rights. Company may enforce its indemnification rights under this Guaranty without being required to initiate and prosecute any collection, enforcement, or other legal proceeding against an Account Debtor or other Person. It is the intent of the parties to this Guaranty that Principal’s personal liability hereunder be primary to and separate from any liability SELLER may have to Company under the Contract. If any action is instituted to enforce the terms hereof, the prevailing party shall be entitled to the full amount of its costs and reasonable attorneys’ fees.
7. Waiver. The undersigned hereby waives any and all legal requirements that Company shall institute any action or proceedings at law or equity against SELLER, an Account Debtor identified in any Schedule of Accounts or Receivables, or other Person in respect to the Contract as a condition precedent to bringing action against the undersigned upon this Guaranty.
PRINCIPAL AND THE UNDERSIGNED HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS GUARANTY AND ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY ENTERING INTO THIS GUARANTY.
8. Primary Liability. It is understood and agreed that until the obligations of SELLER under the Contract are fully and timely satisfied as aforesaid and each and every of the terms, covenants, and conditions of this Guaranty are fully performed, the undersigned shall not be released by any act or thing that might, but for this provision of this instrument, be deemed a legal or equitable discharge of a surety, or by reason of any waiver, extension, modification, forbearance, or delay or other act or omission of Company or its failure to proceed promptly or otherwise, or by reason of any action taken or omitted or circumstance that may or might vary the risk or affect the rights or remedies of the undersigned or by reason of any further dealings between SELLER and Company, whether relating to the Contract or otherwise, and the undersigned hereby expressly waives and surrenders any defenses to its liability hereunder based upon any of the foregoing acts, omissions, things, or agreements or waivers of SELLER; it being the purpose and intent of the parties hereto that the obligations of the undersigned hereunder are absolute and unconditional under any and all circumstances.
9. Notices. Notices to Company or Principal should be to the addresses set forth below, which may be changed only by written notification from either party:
Company: Produce Pay Inc.
c/o Ben Dusastre
888 W. 6th Street, Suite 200
Los Angeles, California 90017
The undersigned hereby waives notice of acceptance of this Guaranty by Principal and or presentment, demand, protect, notice of protect and of dishonor, notices of default, and all other notices relative to this Guaranty of every kind and description now or hereafter provided by any agreement between Company and Principal or any statute or rule of law.
10. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Delaware.
11. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior promises, covenants, commitments, representations, warranties, statements, negotiations, agreements or understandings, whether oral or written, between the parties or others acting on behalf of either of the parties relating to the subject matter hereof.
12. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original and all of which shall constitute the same instrument, but only one of which need be produced.
13. Modification and Waiver. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by both of the parties hereto. Compliance with the provisions of this Agreement may be waived only by an instrument in writing executed by the party granting the waiver.
14. Severability. Should any court of competent jurisdiction decide, hold, adjudge or decree that any provision, paragraph, clause or term of this Agreement is void or unenforceable in whole or as applied in a particular situation, such determination shall not affect any other provision of this Agreement and all other provisions of this Agreement shall remain in full force and effect in such situation, and all provisions to this Agreement shall remain in full force and effect in any and all other situations.
15. Binding Effect. This Guaranty shall be binding upon the undersigned and its successors and assigns and shall inure to the benefit of Company and its successors and assigns.
IN WITNESS WHEREOF, each of the parties has executed this Guaranty as of the date first above written.
Executed this ____ day of __________________, 2022:
By: PRODUCE PAY INC.
Name: Pablo Borquez Schwarzbeck
 PACA means the Perishable Agricultural Commodities Act, 1930, as amended, 7 U.S.C. §§ 499a, et seq. (2016), along with its governing regulations at 7 C.F.R. §§ 46.1, et seq. (2016).
 Seller’s statement of intent to transfer the entirety of its beneficial interests in and to the PACA trust. See Restatement (Third) of Trusts § 52 (2003); See also Restatement of (Third) of Trusts § 48 (2003).
 PACA means the Perishable Agricultural Commodities Act, 1930, as amended, 7 U.S.C. §§ 499a, et seq. (2016), along with its governing regulations at 7 C.F.R. §§ 46.1, et seq. (2015).
 See 6 Del. C. § 9-406(a) (after receipt of notice, the account debtor may discharge its obligation by paying the assignee and may not discharge the obligation by paying the assignor).
 The obligations imposed by this notice are statutory requirements. Accordingly, your signature is not required for this notice to be legally effective or biding. Rather, your signature is being requested to ensure transparency within our supply chain and to avoid problems appurtenant to poor communication practices.
[i] Definitions. When used herein, the following terms shall have the following meanings:
- Account: Means a Right to receive payment of a monetary obligation from an Account Debtor and expressly includes Seller’s Contract Right to Receive Payment as defined herein.
- Account Debtor: Means a Person obligated on any Purchased Account or Receivable to make full and prompt payment to Seller (e.g., buyer or receiver of Produce from Seller).
- Adjustments: Means all discounts, allowances, returns, disputes, counterclaims, defenses, collateral expenses, offsets, rights or recoupment, rights of return, warranty claims, or short payments asserted by or on behalf of any Account Debtor with respect to any Purchased Account or Receivable.
- AR: Means Eligible Accounts or Receivables Seller offers to Company for sale and relates to one or more Produce transactions between Seller and an Account Debtor.
- AR Purchase Price: Means the price identified in the key terms and condition table above.
- Rebate or Performance Incentive Payment: Means, with respect to any purchased account or receivable, an amount calculated pursuant to the Parties’ Rebate Agreement pursuant to the terms stated therein.
- Assignment: Means a voluntary transfer of an Account or Receivable and all or the entirety of Seller’s Rights to receive payment under any Purchased Account or Receivable, but does not include any type of delegation of Seller’s performance obligations or responsibilities, warranty obligations, or duties, express or implied, to an Account Debtor or third party.
- Contract Right to Receive Payment: Means all or the entirety of Seller’s Right to receive progression, installment, or other periodic payments from an Account Debtor in exchange for Seller’s performance of certain contractual obligations related thereto and where Seller’s Right to receive payment may not be documented in the form of a traditional invoice (e.g., grower liquidation, account of sale with payment, consignment accounting with payment, etc.).
- Creditor: Means and includes a general creditor, a secured creditor, a lien creditor, and any representative of creditors, including an assignee for the benefit of creditors, a trustee in bankruptcy, a receiver in equity, and an executor or administrator of an insolvent debtor’s or assignor’s estate.
- Credit Risk: Means the risk of non-payment or slow payment of a Purchased Account or Receivable by an Account Debtor or other Obligor.
- Document of Title: Includes bill of lading, dock warrant, dock receipt, warehouse receipt or order for the delivery of goods, and also any other document which in the regular course of business or financing is treated as adequately evidencing that the person in possession of it is entitled to receive, hold, and dispose of the document and the goods it covers.
- Effective Date: Means the date identified in the key terms and condition table above.
- Eligible Account or Receivable: Means an Account or Receivable due and owing to Seller which meets the specifications established by Company, in its sole discretion.
- Final Invoice: Means a Genuine Document issued to an Account Debtor that constitutes a demand for full and prompt payment of the amounts stated thereon and the same being free of objection or claim and no longer subject to change or modification.
- Genuine: Means free of forgery or counterfeiting and free of unapproved or undisclosed alteration or modification.
- Good Faith: Means honesty in fact in the conduct or transaction concerned and the observance of PACA’s standards of fair dealing in the Produce trade.
- Information: Means all written information heretofore or hereafter furnished or made available to Company and its Representatives by Seller or any of its representatives in the course of activities related to this Contract or factoring services to Seller or other transaction with Seller, and all analyses, computer files (whether or not reduced to written form), compilations, memoranda, notes, reports, date, studies, or other documents and all copies and extracts thereof prepared by Company or its representatives containing or based in whole or in part on any such information or reflecting Company’s review or evaluation of Seller’s business or any of its subsidiaries, divisions, or other businesses or assets.
- Obligor: Means a Person that owes payment or other performance of a monetary obligation or is otherwise accountable in whole or in part for payment or other performance of a monetary obligation.
- Obligation: Means any and all amounts due, owing, and payable to either Seller or Company under the terms of this Contract.
- Person: Means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, governmental subdivision, agency, or instrumentality or any other legal or commercial entity.
- Proceeds: Means (i) all good funds received by Company from or on behalf of an Account Debtor with respect to a Purchased Account or Receivable; (ii) whatever is acquired upon the sale, license, exchange, or other disposition of an asset; (iii) whatever is collected on, or distributed on account of, an asset; (iv) rights arising out of an asset; (v) claims arising out of the loss, nonconformity, or interference with the use of, defects or infringements of rights in, or damage to, the asset.
- Purchase: Means taking title by sale, discount, negotiation, gift, or any other voluntary transaction creating an interest in property.
- Purchase Price: Means the amount Company pays to Seller for its Purchase of an Eligible Account or Receivable.
- Purchaser: Means a person that takes title by Purchase.
- Purchased Account or Receivable: Means an Eligible Account or Receivable Company elected to Purchase from Seller.
- Right: Includes any and all related and available remedies at law or in equity.
- Receipt: Means to take physical possession, custody, and control over that which is being or has been received.
- Receivable: Means a Final Invoice, including, but not limited to any and all Accounts, chattel paper, instruments, contract Rights, documents, general intangibles, letters of credit, drafts, banker’s acceptances, or other Rights to receive payment and all proceeds thereof, free of further adjustments, that memorizes an undisputed and enforceable right to receive an amount due and owing to Seller from an Account Debtor or Obligor.
- Representatives: Includes the directors, officers, employees, agents, or other representatives, including, without limitation, attorneys, accountants, and consultants, of Company.
- Schedule of Accounts or Receivables: Means a Bill of Sale signed by a Representative of Seller which accurately and fully describes the Eligible Account or Receivable which Company, in its sole discretion, elects to Purchase and identifies for each such Eligible Account or Receivable: (i) the name and address of the Account Debtor; (ii) the correct amount owed to Seller; (iii) the invoice number or project number/description; (iv) disclosure of all applicable allowances, discounts, or other deductions affecting the amount the Account Debtor owes to Seller, and; (v) the amount Company paid to Seller.
- Transfer: A negotiable instrument or check is transferred when it is delivered by a Person other than its issuer for the purpose of giving the Person receiving delivery the Right to enforce the instrument. An Account or Receivable is transferred when it is delivered to Company.