These terms and conditions of service (these “Terms and Conditions”) are applicable to financing transactions entered into between Flexport Capital LLC (“Flexport Capital”) and each customer party thereto (individually and collectively, “Company”). Company, by executing a Term Sheet, Extended Terms Agreement, Trade Finance Agreement, Installment Plan Agreement, Master Services Agreement or other agreement in connection with such financing transaction (individually and collectively, a “Loan Document”), shall be bound by these Terms and Conditions.
Flexport Capital may from time to time change these Terms and Conditions. Any changes are effective immediately upon publication on Flexport’s website at www.flexport.com/terms.
Definitions. Capitalized terms used and not otherwise defined herein shall have the meanings assigned to them in the applicable Loan Document. (a) “Event of Default” has the meaning assigned to it in Section 9. (b) “Taxes” means taxes, levies, imposts, deductions, Charges or withholdings, and all liabilities with respect thereto, excluding taxes imposed on or measured by the net income of Flexport Capital.
Rules of Construction. For purposes of these Terms and Conditions and any Loan Document, the following rules of construction shall apply, unless specifically indicated to the contrary: (a) wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, the feminine and the neuter; (b) the term “or” is not exclusive; (c) the term “including” (or any form thereof) shall not be limiting or exclusive; (d) all references to statutes and related regulations shall include any amendments of same and any successor statutes and regulations; (e) the words “herein,” “hereof” and “hereunder” or other words of similar import refer to the applicable Loan Document and these Terms and Conditions as a whole, including any exhibits and schedules thereto, as the same may from time to time be amended, modified or supplemented; (f) all references to any instruments or agreements, including references to any of the Loan Documents, shall include any and all modifications or amendments thereto and any and all extensions or renewals thereof; and (g) section titles are and shall be without substantive meaning or content of any kind whatsoever.
Financing Requests. Unless otherwise agreed, Company shall request each Financing by irrevocable electronic submission via the Flexport.com platform (a “Financing Request”) not later than 5:00 p.m. on or before the Business Day prior to the Business Day on which Company is requesting the Financing to be paid. Once Company has submitted a Financing Request and Flexport Capital has agreed to fund such request, Company may not cancel any freight forwarding or brokerage bookings made in connection with such Financing Request. Flexport Capital shall be fully protected in relying on (i) any Financing Request believed by Flexport Capital to be genuine, and (ii) the assumption that any Person making any Financing Request is duly authorized to make such request. Flexport Capital may permit telephonic or e-mail transmission of requests, instructions, authorizations, agreements or reports from Company to Flexport Capital, unless Company specifically directs Flexport Capital in writing not to accept such forms of communication. Flexport Capital shall have no duty to verify the origin of any such communication or the identity or authority of the Person sending it.
Payment. Company shall make each payment without set-off, counterclaim or deduction and free and clear of all Taxes not later than on the day when due in lawful money of the United States of America in immediately available funds to the account designated by Flexport Capital in writing.
Prepayment. Company may, at any time and from time to time, prepay any Financing in whole or in part without premium or penalty. If at any time the aggregate amount of Financings exceeds the Credit Limit Amount, Company must immediately pay the amount of such excess to Flexport Capital.
Auto-Debit Authorization. (a) Company authorizes Flexport Capital to automatically debit the Payment Account as necessary to pay amounts due and owing to Flexport Capital under the Loan Documents. Such payments will be automatically processed on the due date for each payment as set forth in the applicable Loan Document. Company authorizes Flexport Capital to increase the amount of any scheduled ACH debit from the Payment Account by the amount necessary to account for any previously scheduled payment that was not paid as scheduled and/or any additional charges or fees. (b) If Company at any time wishes to pay via a different payment method, Company shall log in to its Flexport.com account and designate its preferred payment method. The Payment Account shall at all times be a valid checking account with ACH privileges on file at Flexport.com. Flexport Capital is not able to accept credit card payments. If Company revokes the authorization set forth in this Section 6, Company shall remain responsible for making timely payments pursuant to an alternative payment method approved by Flexport Capital. Company agrees to notify Flexport Capital promptly if there are any changes to the account and routing numbers of the Payment Account. Flexport Capital is not responsible for any fees charged by Company’s bank as the result of credits or debits initiated under the authorization set forth herein. The origination of ACH transactions to or from the Payment Account must comply with all provisions of applicable law. (c) The authorization set forth herein shall remain in effect until Flexport Capital receives from Company written notice that such authorization is terminated, and both Flexport Capital and the applicable depository institution have sufficient time to act on such notice. Company understands and agrees that if Company’s account does not have sufficient funds to make any scheduled payment, Flexport Capital will not be responsible or liable for any penalties or charges assessed as a result of such insufficiency. Notwithstanding the foregoing, Flexport Capital may suspend or terminate Company’s enrollment in the automatic payment plan with immediate effect if Company fails to keep the Payment Account in good standing or if there are insufficient funds in the Payment Account to process any payment; Company shall remain responsible for making timely payments pursuant to an alternative payment method approved by Flexport Capital.
Fees. Notwithstanding anything to the contrary set forth in any Loan Document, if a court of competent jurisdiction determines in a final order that the interest and fees applied to each Financing exceed the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable under the Loan Documents shall be reduced to the Maximum Lawful Rate.
Facility Termination. Company and Flexport Capital shall each have the right, at any time, upon prior written notice to the other party to (i) terminate voluntarily Company’s right to receive Financings and (ii) require repayment of all Obligations. The effective date of termination specified in such notice shall be the Termination Date. On the Termination Date, Company shall pay to Flexport Capital in full, all outstanding Financings, all accrued but unpaid interest and fees, and all other non-contingent Obligations.
Events of Default. The occurrence of any one or more of the following events (regardless of the reason therefor) shall constitute an “Event of Default” and shall be continuing until waived in writing by Flexport Capital: (a) Company fails to make any payment in respect of any Obligations when due and payable to Flexport Capital or any of its Affiliates; (b) Company fails to perform, keep or observe any of the covenants, promises, agreements, requirements, conditions or other terms or provisions contained in any Loan Document; (c) any representation or warranty in any Loan Document, or in any written statement, report, financial statement or certificate made or delivered to Flexport Capital by Company is untrue or incorrect as of the date when made or deemed made; (d) any Litigation has commenced seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of Company’s assets that results in the entry of an order for any such relief that remains unstayed or undismissed for thirty (30) consecutive days; (e) any judgment is entered against Company (to the extent not covered by independent third-party insurance as to which the insurer has been notified and accepted such claim) and is not, within ten (10) days after the entry thereof, discharged, satisfied, or paid; (f) a case or proceeding shall have been commenced involuntarily against Company in a court having competent jurisdiction seeking a decree or order under the United States Bankruptcy Code or any other applicable Federal, state or foreign bankruptcy or other similar law, and seeking either (x) the appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Person or of any substantial part of its properties, or (y) the reorganization or winding up or liquidation of the affairs of any such Person, and such case or proceeding shall remain undismissed or unstayed for sixty (60) consecutive days or such court shall enter a decree or order granting the relief sought in such case or proceeding; (g) Company shall voluntarily (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors, seeking to have an order for relief entered with respect to it or seeking appointment of a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for it or any substantial part of its properties, (ii) make a general assignment for the benefit of creditors, (iii) consent to or take any action in furtherance of, or, indicating its consent to, approval of, or acquiescence in, any of the acts set forth in paragraphs (e) or (f) of this Section 9 or clauses (i) and (ii) of this paragraph (g), or (iv) shall admit in writing its inability to, or shall be generally unable to, pay its debts as such debts become due; (h) any Guarantor shall die, become incompetent or cease to have legal existence; (i) any other event shall have occurred that has had or could reasonably be expected to have a Material Adverse Effect and Flexport Capital shall have given Company notice thereof; or (j) any provision of any Loan Document for any reason ceases to be valid, binding and enforceable in accordance with its terms or Company or any Person contests in writing the validity or enforceability of any provision of any Loan Document.
Remedies. If any Event of Default shall have occurred and be continuing, Flexport Capital may, without notice, take any one or more of the following actions: (i) accelerate all or any portion of the Obligations to be immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby waived by Company; or (ii) exercise any rights and remedies provided to Flexport Capital under the Loan Documents or at law or equity; provided, that upon the occurrence of any Event of Default specified in Sections 9(d), (f) or (g), the Obligations shall become immediately due and payable (and any obligation of Flexport Capital to make further Financings, if not previously terminated, shall immediately be terminated) without declaration, notice or demand by Flexport Capital.
Indemnity. Company agrees to indemnify and hold Flexport Capital and its Affiliates, and their respective employees, attorneys and agents (each, an “Indemnified Person”), harmless from and against any and all suits, actions, proceedings, claims, damages, losses, liabilities and expenses of any kind or nature whatsoever (including attorneys’ fees and disbursements and other costs of investigation or defense) that may be instituted or asserted against or incurred by any such Indemnified Person as the result of credit having been extended, suspended or terminated under any Loan Document or with respect to the execution, delivery, enforcement, performance and administration of, or in any other way arising out of or relating to, any Loan Document and any actions or failures to act with respect to any of the foregoing, including any and all product liabilities, Taxes and legal costs and expenses arising out of or incurred in connection with disputes between or among any parties to any of the Loan Documents (collectively, “Indemnified Liabilities”), except to the extent that any such Indemnified Liability is finally determined by a court of competent jurisdiction to have resulted solely from such Indemnified Person’s gross negligence or willful misconduct. No Indemnified Person shall be responsible or liable to Company, any successor, assignee or third party beneficiary or any other person asserting claims derivatively through such party, for any act or failure to act under any power of attorney or for indirect, punitive, exemplary or consequential damages that may be alleged as a result of credit having been extended, suspended or terminated under any loan document or as a result of any other transaction contemplated thereunder.
Limitation on Liability. Flexport Capital makes no representations or warranties, express or implied, as to the merchantability, fitness for a particular purpose or otherwise with respect to any inventory. Flexport Capital has no liability or responsibility to Company or any other Person with respect to (i) the conformity of any Inventory to orders therefor, (ii) the accuracy of any information in any report or statement prepared by Flexport Capital at the request of Company or (iii) the collectability of any Accounts.
Expenses. Company agrees to pay or reimburse Flexport Capital for all costs and expenses (including the fees and expenses of all special counsel, advisors, consultants and auditors retained in connection therewith), incurred in connection with: (a) the preparation, negotiation, execution, delivery, performance and enforcement of the Loan Documents and the preservation of any rights thereunder; (b) collection, including deficiency collections; (c) the forwarding to Company or any other Person on behalf of Company by Flexport Capital of the proceeds of any Financing; (d) any amendment, extension, modification or waiver of, or consent with respect to any Loan Document or advice in connection with the administration of the Financings or the rights thereunder; (e) any litigation, contest, dispute, suit, proceeding or action (whether instituted by or between any combination of Flexport Capital, Company or any other Person or Persons), and an appeal or review thereof, in any way relating to the Collateral, any Loan Document, or any action taken or any other agreements to be executed or delivered in connection therewith, whether as a party, witness or otherwise; and (f) any effort (i) to monitor the Financings, (ii) to evaluate, observe or assess any Company, and (iii) to verify, protect, evaluate, assess, appraise, collect, sell, liquidate or otherwise dispose of the Collateral including the expenses of Flexport Capital’s representative at any premises, insurance and credit insurance premiums, transportation and shipping expenses, customs clearance expenses and official fees and taxes.
No Waiver. Neither Flexport Capital’s failure, at any time or times, to require strict performance by Company of any provision of any Loan Document, nor Flexport Capital’s failure to exercise, nor any delay in exercising, any right, power or privilege under any Loan Document, (a) shall waive, affect or diminish any right of Flexport Capital thereafter to demand strict compliance and performance therewith, or (b) shall operate as a waiver thereof. Any suspension or waiver of a Default or other provision under the Loan Documents shall not suspend, waive or affect any other Default under any Loan Document. No suspension or waiver by Flexport Capital shall be effective unless such suspension or waiver is in writing signed by an authorized signatory of Flexport Capital and then is only effective for the specific instance and purpose for which it is given.
Severability. Wherever possible, each provision of the Loan Documents shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of any Loan Document shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of such Loan Document.
Authorized Signatories. Until Company notifies Flexport Capital in writing to the contrary, the signature upon any document or instrument delivered to and believed by Flexport Capital or any of Flexport Capital’s officers, agents, or employees to be that of an officer or other authorized signatory of Company shall bind Company and be deemed to be the act of Company affixed pursuant to and in accordance with resolutions duly adopted by Company’s board of directors, members or managers, as applicable, and Flexport Capital shall be entitled to assume the authority of each signature and authority of the person whose signature it is or appears to be unless the person acting in reliance of such signature shall have actual knowledge of the fact that such signature is false or the person whose signature or purported signature is presented is without authority.
Counterparts. Any Loan Document may be authenticated in any number of separate counterparts by any one or more of the parties thereto, and all of said counterparts taken together shall constitute one and the same instrument. Any Loan Document may be authenticated by manual signature, facsimile or electronic means, all of which shall be equally valid.
SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL. (a) Company consents and agrees that the state or federal courts located in the County of San Francisco in the State of California shall have exclusive jurisdiction to hear and determine any claims or disputes between Company and Flexport Capital pertaining to any Loan Document or to any matter arising out of or related to any Loan Document; provided, that nothing in any Loan Document shall be deemed or operate to preclude Flexport Capital from bringing suit or taking other legal action in any other jurisdiction to collect the Obligations, to realize on any Collateral or any other security for the Obligations, or to enforce a judgment or other court order in favor of Flexport Capital. Company expressly submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and such Company hereby waives any objection that it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens. Company hereby waives personal service of the summons, complaint and other process issued in any such action or suit and agree that service of such summons, complaint and other process may be made by registered or certified mail addressed to Company at the address set forth in the applicable Loan Document and that service so made shall be deemed completed upon the earlier of Company’s actual receipt thereof or three (3) days after deposit in the U.S. mail, proper postage prepaid. (b) The parties desire that their disputes be resolved by a judge applying such applicable laws. Therefore, to achieve the best combination of the benefits of the judicial system, the parties hereto waive all rights to trial by jury in any action, suit, or proceeding brought to resolve any dispute, whether arising in contract, tort, or otherwise between Flexport Capital and Company arising out of, connected with, related or incidental to the relationship established between them in connection with the Loan Documents or the transactions related thereto.
Reinstatement. The Loan Documents shall continue to be effective, or be reinstated, as the case may be, if at any time payment of all or any part of the Obligations is rescinded or must otherwise be returned or restored by Flexport Capital upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Company, or otherwise, all as though such payments had not been made.
Joint and Several. If Company consists of more than one Person (i) the obligations and liabilities of each Person under the applicable Loan Document(s) to which such Person is a party, shall be joint and several and (ii) each reference to a “Company” in any Loan Document or in these Terms and Conditions shall be deemed to be a reference to each such Person, individually, and to all such Persons, collectively. Company hereby waives any and all rights of subrogation, reimbursement, contribution, indemnity or otherwise arising by contract or operation of law, including any lien rights, from or against any other company until each Financing has been paid in full and all of Company’s obligations under the Loan Documents are fulfilled.
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