MARKETPLACE BY PRODUCEPAY FACTORING CONTRACT
This Factoring Contract (the “Factoring Contract”) is made and entered into by and between Produce Pay Inc., a Delaware corporation (hereinafter “Company” or “Buyer”), and the seller identified below (hereinafter “Seller”), (Company and Seller hereinafter collectively the “Parties”). By electronically accepting this Factoring Contract, the entity or individual identified as a Seller in the Factoring Contract agrees that this Factoring Contract shall be legally binding on the Seller.
KEY TERMS & INFORMATION
The Seller agrees that the purchase price for any invoice sold to Company shall be set forth in a Bill of Sale. The Seller shall provide its contact information for Notices pursuant to this Factoring Contract when it executes the Factoring Contract electronically. The Payment Terms for invoice purchases shall be within 24 hours after Company receives proper verification of the receivable and/or invoice being acquired. Company shall make final determinations in its sole discretion of whether to acquire any invoice, and will only consider receivables which are under 30 days pursuant to standard accounts receivables aging reporting practices.
WHEREAS, Seller operates in the produce industry and is engaged in the business of growing, buying and selling perishable agricultural commodities (“Produce”) in domestic or foreign commerce for sale in the United States market, and the Produce is regulated under the Perishable Agricultural Commodities Act, 1930, as amended, 7 U.S.C. §§ 499a (“PACA”), regardless of whether the Seller holds a USDA-issued PACA license;
WHEREAS, 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 to cash, thereby making said assets more freely available;
WHEREAS, Seller is a member of the Marketplace By ProducePay (the “Marketplace”) and sells or intends to sell Produce to other members of the Marketplace in the United States market;
WHEREAS, 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;
WHEREAS, 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;
WHEREAS, 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;
WHEREAS, the Seller and Company wish to enter into an agreement that memorializes the Seller’s use of the Platform and Company’s provision of the Platform and any associated services; and
WHEREAS, Seller and Company desire that this Factoring Contract shall incorporate all of the terms of the “Guidelines for Marketplace by ProducePay Produce Invoice Purchases” (the “Guidelines”) found at https://producepay.com/guidelines-for-marketplace-by-producepay-produce-invoice-purchases/.
THEREFORE, Seller hereby agrees to sell certain of its accounts and receivables, and Company agrees to purchase the same, subject to the terms and conditions set forth in this Factoring Contract and as set forth in a Bill of Sale accompanying each invoice purchased by Company, which shall become a schedule to this Factoring Contract. The term of this Factoring Contract shall commence on the Effective Date and continue for twelve (12) consecutive months (the “Contract Period”).
TERMS AND CONDITIONS
- The information contained in the “Key Terms & Information” and the “Recitals” sections above are hereby incorporated into this Factoring Contract as though fully set forth in this section one and shall constitute material terms of this Factoring Contract.
- The terms and provisions of the Guidelines and all forms therein are hereby incorporated and made a part hereof and are an integral part of this Factoring Contract. In the event of any conflict, inconsistency or discrepancy between any of the provisions of the Guidelines and any of the provisions of this Factoring Contract, the provisions of this Factoring Contract shall control and be binding upon Company and the Seller. The Seller hereby (a) acknowledges that it has received and reviewed the Guidelines; and (b) agrees to be bound by the terms and conditions set forth in the Guidelines.
- Seller and Company agree to execute and deliver to the other such reasonable and additional documents, instruments or agreements as may be necessary or appropriate to effectuate the purposes of the Guidelines, including but not limited to all forms and notices identified in and/or attached to the Guidelines.
- Seller designates Company as its agent for the purposes of serving any notice to a buyer of Produce for the purposes of preserving trust rights under PACA.
- This Factoring Contract shall be construed in accordance with the laws of the State of Delaware, and the obligations, rights and remedies of the Parties hereunder shall be determined in accordance with the laws of the State of Delaware, except to the extent preempted by Federal law. All disputes relating to or arising under this Factoring Contract shall be resolved in the federal or state courts located in the City of Los Angeles, California.
- This Factoring Contract, and any exhibits or attachments to the Factoring Contract and/or the Guidelines that may be required to be executed under the terms of the Factoring Contract, may be executed simultaneously in any number of counterparts in any instance where a Company signature is necessary, and/or executed electronically. Each counterpart shall be deemed an original, and all such counterparts shall constitute one and the same instrument.