Example:
THIS Accounts Receivable Purchasing Agreement (“Agreement”) is made as of the date executed, hereby known as the Effective Date, by and between the undersigned (“Officer”) and RollKall Technologies, LLC, a Texas Limited Liability Company, together with its affiliates, successors, and assigns (hereinafter “RollKall”). In connection with the sale of certain accounts receivable of Recipient to RollKall, the parties agree to the following terms and conditions.
DEFINITIONS:
- “RollKall Platform” is defined to include RollKall’s website RollKall.com and its mobile applications as defined and discussed in the Officer Terms of Service.
- “Client” is defined as an individual(s), corporation(s), partnership(s), or other legal entity using the RollKall Platform to obtain services from the Officer.
- “Service Agreement” is defined as any agreement initiated through the RollKall Platform between a Client and Officer to perform professional services as an independent contractor.
- “Job” is defined as any agreement whereby Officer has agreed to provide and did provide services to the Client and whereby the service relationship between the Officer and the Client derived from their use of the RollKall Platform.
- “Dispute” is defined as any controversy, dispute, or claim of every kind (including claims, counterclaims, and cross-claims) and nature arising out of or relating to the negotiation, construction, validity, interpretation, performance, enforcement, operation, breach, continuation, or termination of this Agreement, whether arising out of common, state, or federal law.
- “Parties” means, collectively, Officer and RollKall.
2. SALE AND PURCHASE OF ACCOUNTS. Officer may offer to assign, transfer, convey, deliver, and sell to RollKall, as absolute owner, all rights and title to any payments and proceeds to the Officer arising from any Service Agreement. RollKall may, in its reasonable sole credit and business judgment, purchase certain invoice(s) presented to it by the Officer and pay the Officer the agreed upon purchase price (the “Purchase Price”), whereby the invoices shall be deemed purchased (“Purchased Invoice”). The Parties understand and agree that any invoice purchase pursuant to this Agreement is a business and commercial purpose transaction and further understand and agree that the amount paid for any Purchased Invoice will be used solely for business or commercial purposes.
Officer shall not, take any loan or other advance against or change or modify the terms of the original invoice or invoice documentation relating to any Purchased Invoice. Officer hereby authorizes RollKall to purchase invoices upon notification by the Officer through the RollKall Platform. All Clients will be instructed to make payments directly to RollKall upon purchase of a Purchased Invoice. RollKall assumes the risk of non-payment for each Purchased Invoice. Officer authorizes RollKall to verify any Invoice with the Client prior to or in connection with its purchase.
3. TERM. Either of the Parties may choose, at any time, to cease purchasing or selling invoices pursuant to this Agreement, upon written notice to the other Party. Notice to RollKall should be provided through the RollKall Platform, or by mail to 909 Lake Carolyn Parkway Suite 1500, Irving, TX 75039 Officer is not obligated to sell any invoice to RollKall.
RollKall is not obligated to purchase any invoice from Officer.
4. PURCHASE PRICE. The Purchase Price of any invoice is 92.5% of the face amount of that Invoice owed by the Client to the Officer at the time of purchase. RollKall purchases all Invoices at a 7.5% discount.
5. REPURCHASE. Each Purchased Invoice is subject to mandatory repurchase by Officer and will be sold back to Officer only when (a)there is fraud or willful misconduct by Officer in connection with the Invoice, or (b) as a result of certain Client Disputes, as set forth in paragraph 8 below.
6. SECURITY INTEREST. Officer hereby grants RollKall a security interest in each Purchased Invoice, and hereby assigns to RollKall, all rights and interests and monies due or becoming due on any Purchased Invoice, all records and documents relating to any Purchased Invoice, and all rights associated with or related to any Purchased Invoice. Officer represents to RollKall that the security interest in each Purchased Invoice is a valid, continuing, first-position security interest in favor of RollKall. Officer authorizes RollKall to file any documentation necessary, including any financing statements (as well as amendments, corrections, and continuation statements), to perfect this security interest, and Officer grants RollKall all of the rights and remedies of a secured party under Article 9 of the Uniform Commercial Code (“UCC”). RollKall is, and will at all times be, the sole owner of all Purchased Invoices. This security interest is intended to protect RollKall’s rights solely in the event that RollKall is determined, in contravention to the intent of the parties, not to be the owner of any Purchased Invoice.
7. REPRESENTATIONS AND WARRANTIES. Officer represents and warrants that: (a) Officer is fully authorized to enter into this Agreement and perform Officer’s obligations hereunder; (b) Officer is and will continue to be at all times during which Officer seeks to sell invoices to RollKall, a peace officer or retired peace officer in good standing within the jurisdiction in which the Job is located; (c) Officer has not been charged, convicted, or investigated for any crime not previously disclosed to RollKall; (d) Officer is not an employee or agent of RollKall and performs all services pursuant to any Service Agreement as a business activity as an independent contractor of Client; (e) the Purchased Invoice(s) is/are and will remain the genuine obligation of Clients for services rendered by the Officer in good faith and consistent with Client’s stated expectations and requirements; (f) Officer will not impede the normal collection of any Purchased Invoice and all proceeds received by Officer in connection with a Purchased Invoice will be held on behalf of RollKall and forwarded to RollKall within seven days of receipt; and (g) Officer will not knowingly encumber any Purchased Invoice(s) post-sale.
8. CLIENT DISPUTES. Officer shall notify RollKall promptly of all claims by the Client against Officer, of any kind, that potentially reduce the amount collectible on Purchased Invoices (“Client Disputes”). RollKall may require the Officer to repurchase any Purchased Invoice that is subject to a Client Dispute where RollKall determines in its sole discretion that the Purchased Invoice is likely to be uncollectable in whole or in part as a result of the failure of the Officer to provide the goods or services as described in the Purchased Invoices
9. DIRECT PAYMENTS; UNREPORTED ADVANCES. RollKall has the sole and exclusive right to collect any amounts owing on the Officer’s Invoices purchased by RollKall. RollKall will notify each Client that RollKall has purchased the invoice within seven days of purchase, and will provide each Client with instructions on how to remit payment on the invoice to RollKall. To the extent that Officer receives any payment on a Purchased Invoice Officer will hold that payment for the sole benefit of RollKall, and Officer agrees to remit and deliver that payment to RollKall within seven days of receipt. Officer agrees to keep an accounting of all payments received for any Purchased Invoice and will give that accounting to RollKall upon RollKall’s request. Officer understands and agrees not to obtain an advance from a Client relating to any Purchased Invoice without first notifying RollKall and obtaining RollKall’s written consent to such advance and stating the amount of said advance on the invoice.
10. AUTHORIZATION. Officer authorizes RollKall to exercise any of the following powers in connection with Purchased Invoices: (a) notify any Client that the Purchased Invoice has been assigned to RollKall by Officer and that payment is to be made directly to RollKall; and (b) receive, take, and deposit any funds paid by the Client in connection with the Purchased Invoice.
11. DEFAULT EVENT. The following events constitute a Default Event: (a) Officer fails to perform a material obligation of this Agreement, and is unable upon notice of the deficiency to correct such material deficiency within seven (7) days; (b) any of the material Representations and Warranties contained in this Agreement prove to be false;. Upon the occurrence of any Default Event, RollKall may exercise all rights that RollKall has under this Agreement or applicable law..
12. INDEMNIFICATION. Officer agrees to indemnify and hold RollKall harmless from any suits, claims, demands, judgments, settlements, damages, and expenses resulting out of this Agreement, or failure by Officer to perform its obligations to Client which may be imposed, asserted, alleged, or awarded against RollKall by a non-party to this agreement, including without limitation, all legal expenses, court costs, and reasonable attorney fees incurred in connection with the nonparty’s suit, claim, demand demands, judgments, settlements, damages, and expenses against RollKall, arising from or relating in any manner to this Agreement, or any document executed in connection with this Agreement, or any transaction contemplated by this Agreement, or the purchase, finance, and collection of Invoices pursuant to this Agreement, but excluding matters which are found in a final judgment by a court of competent jurisdiction to have resulted primarily from the RollKall’s fraud or willful misconduct.
13. ASSIGNMENT. Officer may not assign or transfer this Agreement, in whole or part, and any such purported assignment or transfer is void. RollKall may assign all or any part of this Agreement and may, without limitation, assign the rights, benefits, and remedies of RollKall without assigning any of the duties, obligations, or liabilities of RollKall.
14. CHOICE OF LAW. To the extent permitted by applicable law, this Agreement and all related transactions shall be governed by, construed under, and enforced in accordance with the laws of the State of Texas. All terms capitalized herein but not defined shall have the meaning set forth in the Uniform Commercial Code as adopted in the State of Texas.
15. DISPUTE RESOLUTION. All Disputes under this Agreement are subject to arbitration to the greatest extent permitted by applicable law. To initiate arbitration, a Party will file a written demand for arbitration pursuant to the Arbitration Rules of the American Arbitration Association within forty-five (45) days following the occurrence of the Dispute. Any Arbitration will be conducted by a sole arbitrator, unless the Parties agree otherwise. All arbitration hearings will occur in Irving, Texas, at a location chosen by RollKall. All arbitrators will be “neutrals” with a required background in factoring agreements.
The arbitration will be governed by the Commercial Arbitration Rules of the American Arbitration Association.
Unless otherwise agreed to by the Parties, all discovery for Disputes shall be governed by the Federal Rules of Civil Procedure. Any issues concerning discovery upon which the parties cannot agree will be submitted to the arbitrator or arbitration panel for determination. Regardless of the Dispute amount, the arbitrator or arbitration panel may grant motions to dismiss or motions for summary judgment, pursuant to the standards outlined in the Federal Rules of Civil Procedure and the Federal Rules of Evidence.
The arbitrator or arbitration panel (upon an agreement of at least two of its three members) will have the authority to render an appropriate decision or award, including the power to grant all legal remedies consistent with the terms of this Agreement and the law of Texas. The arbitrator or arbitration panel shall not award: damages for lost profits, lost savings, loss of employment or employability, or other consequential, incidental, punitive, or special damages of any kind, whether based in tort, contract, or otherwise; or any damages that are prohibited elsewhere in this Agreement. The binding or preclusive effect of any award will be limited to the actual Dispute arbitrated and to the Parties, and will have no collateral effect on any other dispute or claim of any kind whatsoever. Within thirty days of the conclusion of the arbitration, the arbitrator or arbitration panel will prepare in writing and provide to the Parties the award, which shall include findings of fact and the reasons on which the award was based.
Each Party will bear one-half of the costs, fees, and expenses incurred for arbitration. Each Party shall also bear all of its own costs, fees, and expenses incurred for initiating, preparing, and presenting its case during the arbitration.
16. JURY TRIAL WAIVER. Recognizing the higher costs and delay which may result from a jury trial, Officer and RollKall hereto waive any right to trial by jury of any claim, demand, or cause of action arising under this agreement or in any way related or incidental to the dealings of any of the parties hereto, whether based in contract, tort, or otherwise, to the greatest extent permitted by applicable law. Further, Officer and RollKall waive any right to consolidate any such action in which a jury trial has been waived with any other action in which a jury trial cannot be or has not been waived. The Parties further waive their rights to participate as a plaintiff or as a class member in any claim on a class or consolidated basis or in a representative capacity, to the greatest extent permitted by applicable law. The Parties agree that this Jury Trial Waiver provision shall not imply any right to litigate any Dispute in Court, and the Parties expressly waive its respective rights to litigate any disputes in court, except to the extent that RollKall seeks injunctive relief.
To the extent that the RollKall determines that it may suffer irreparable harm as a result of Officer’s breach, or threatened breach, of this Agreement, then RollKall may, without complying with the Dispute Resolution provision contained in this Agreement, seek injunctive relief from a court of competent jurisdiction.
17. NOTICE. All notices to Officer shall be deemed given upon dispatch through the RollKall Platform, to Officer’s designated email address as entered in the RollKall Platform, or upon deposit with the U.S. Postal Service. All notices to RollKall shall be deemed received upon actual receipt and RollKall’s confirmation of receipt through the RollKall Platform. Notices shall be sent per the terms outlined within this provision unless the Officer or RollKall indicates otherwise in writing to the other party.
18. SEVERABILITY. The provisions of this Agreement are independent and severable, and if any provision is deemed invalid, void, or unenforceable in whole or in part for any reason, the remaining provisions shall remain in full force and effect.
19. ENTIRE AGREEMENT. This Agreement, together with the addenda, other agreements, and instruments mentioned herein or executed by Officer contemporaneously herewith, constitutes the entire agreement of the parties, and RollKall shall not be charged with any agreement, statement, or representation not contained in a writing executed by RollKall as provided in this Agreement.
The parties, in their own right or by and through their duly authorized representatives, hereby sign this Agreement.