Platform Agreement for customers prior to March 15th, 2023
Last updated: November 16, 2022
This agreement applies to customers that signed up for Outgo prior to March 15, 2023 and expires on June 13, 2023. Once expired, this agreement will be replaced by the Deposit agreement last updated on March 15, 2023. View the Platform agreement that goes into affect on March 15, 2023.
The following terms constitute a legal agreement (the “Agreement”) between you, on behalf of yourself as a sole proprietor or on behalf of a business entity (“you”, or “your”, or “Carrier”) and Outgo Inc. its subsidiaries, affiliates, agents, successors and assigns (“Outgo”, “we”, “us”, or “our”) that sets forth the terms and conditions for your use of the products and services offered, operated or made available by Outgo through websites or mobile applications owned and operated by Outgo (collectively, the “Services”). The Services are being provided to you expressly subject to this Agreement. By accessing and/or using the Services on behalf of yourself or the entity that you represent, you acknowledge that you have read, understood, and agree to be bound by the terms of this Agreement and to comply with all applicable laws and regulations. The terms and conditions of this Agreement form an essential basis of the bargain between you and Outgo, and this Agreement governs your use of the Services.
Among other Services, Outgo offers a Service whereby carriers (“Carriers”) submit paperwork to Outgo for the creation of invoices (the “Summary Invoice Service”). Outgo also offers a Service whereby Outgo purchases unpaid invoices (the “Factoring Service”). The Factoring Service allows Carriers who have unpaid commercial invoices to sell Outgo the right to payment owed to such Carrier by the party indebted to that Carrier under the unpaid invoice (the “Broker”). For purposes of this Agreement, the term “Broker” includes any shipper or consignee.
- ACCEPTANCE OF AGREEMENT; GENERAL REPRESENTATIONS AND WARRANTIESPlease carefully review this Agreement before using the Services. If you do not agree to these terms, you may not access or use the Services.You may not access or use the Services or accept this Agreement if (1) you are not a legal resident of the United States, 2) you are not of legal age to form a binding contract with Outgo, or 3) you are prohibited by law from using the Services.By accessing and/or using the Services on behalf of yourself or the Carrier that you represent, you represent and warrant that:
- Carrier agrees to be bound by this Agreement;
- Carrier has not previously been suspended or removed from using any Service;
- Carrier has full power and authority to enter into the Agreement and in doing so will not violate any law or any other agreement to which Carrier is a party;
- Carrier shall only use the Services for commercial, business purposes and shall not use the Services for personal, family or household purposes;
- If Carrier is a legal entity, it further represents and warrants that Carrier is duly organized, validly existing, and in good standing under the applicable laws of the jurisdiction of its organization; and
- Carrier is solvent as of the date Carrier accepts this Agreement.
- MODIFICATION OF THIS AGREEMENTOutgo reserves the right to amend this Agreement at any time. When we make material modifications to this Agreement, we will post the revised Agreement through the Services and update the “Last Updated” date at the top of this Agreement. We will also provide you with notice of any material changes by email at least 30 days before the date they become effective. Your continued use of the Services after any change to this Agreement constitutes your agreement to be bound by any such changes. Outgo may terminate, suspend, change, or restrict access to all or any part of the Services without notice or liability.
- ACCESS TO THE SERVICESTo access Outgo’s Services, Outgo may be required to verify your identity or the identity of the Carrier you represent. When you sign up for our Services, you authorize Outgo to obtain information about you and your invoice and accounts receivable activity, and agree that all information you have provided to Outgo is accurate, current and complete information—such as your name, Carrier’s name, Federal Motor Carrier Safety Administration or Department of Transportation number, mailing address, telephone number, and email address (such information, “Account Information”). You further represent that you are a legal owner of, and that you are authorized to provide us with, all Account Information and other information necessary to facilitate your use of the Services. As part of our initial identity verification process, you authorize us to make any inquiries we consider necessary to validate your identity or the identity of the Carrier you represent. If you do not respond to such inquiries or we cannot verify your identity or the identity of the Carrier you represent, we can refuse to allow you to use the Services. Should any of your Account Information change, you agree that you will update this information as soon as possible.
- BANK ACCOUNTTo access Outgo’s services, you may need to sign up for one or more business deposit accounts, which are made available by one of Outgo’s bank partners (each, a “Provider Bank”), (a “Bank Account”). If your Bank Account is provided by the Provider Bank, use of such Bank Account will be subject to a Deposit Account Agreement (currently accessible at (https://www.outgo.co/legal/deposit-account-agreement-expires-6-13-2023) and the use of a card associated with such Bank Account will be subject to a Cardholder Agreement (currently accessible at https://www.outgo.co/legal/debit-cardholder-agreement) between you and Provider Bank. Please note that Provider Bank only provides Bank Accounts and associated banking services; Provider Bank does not provide or facilitate the Services. The Services are provided solely by Outgo.Your Bank Account will act as an operating account from which you can spend funds for various commercial purposes in conjunction with your business and receive payment for invoices you generate through your business.Please note that Bank Accounts provided by Provider Bank may be subject to transaction restrictions or “spend controls” that will be disclosed to you through the Services or in your Deposit Account Agreement. Such restrictions may also be based on the number of trucks in your fleet. These controls are subject to change at any time in the sole discretion of Outgo and Provider Bank.To help the government fight the funding of terrorism and money laundering activities, we may also obtain, verify, and record information that identifies anyone who opens a Provider Bank Bank Account.
- THIRD PARTY PRODUCT PROVIDERSTo use the Services, you may direct Outgo to retrieve your account transaction history, balance information and/or other information maintained by third-parties with which you have relationships, maintain accounts or engage in financial transactions (“Third-Party Account Information”). Outgo works with one or more third-party service providers to access this Third-Party Account Information. By using the Services, you authorize Outgo to access this information maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. By agreeing to this Agreement, you are also agreeing that you are responsible for keeping your passwords and usernames for this Third-Party Account Information secure, and for keeping those passwords and usernames up to date in your Outgo Services. Outgo does not review the Third-Party Account Information for accuracy, legality or non-infringement, and Outgo is not responsible for your Third-Party Account Information or products and services offered by or on third-party sites.
- SUMMARY INVOICE SERVICE
- 6. 1 Overview of Summary Invoice ServiceThrough the Services, Carrier may, in accordance with this Agreement, submit paperwork to Outgo for the creation of Summary Invoices based on the information that Carrier submits. The Summary Invoice Service is not a factoring service, and Outgo is not purchasing the right to receive the future receivables associated with the Summary Invoice unless Outgo separately purchases the Summary Invoice for factoring. Carrier remains responsible for all collections activity after the date of maturity of the Summary Invoice.As noted above, to use the Summary Invoice Service, you must open or link a Bank Account. Carrier further agrees to provide Outgo with all necessary information to create the Summary Invoice, including but not limited to the amount to be invoiced, who is being invoiced, where the Summary Invoice is to be sent, and any other information that Carrier would like the Summary Invoice to include. Outgo will thereafter deliver the Summary Invoice to the recipient and will provide follow up services, including recording payment when the invoice has been paid, and offer reconciliation to accounting services. Carrier warrants that all information provided to Outgo for the Summary Invoice is accurate, and agrees that Outgo is not responsible in the event that Carrier fails to provide Outgo with accurate information for the Summary Invoice.As part of the Summary Invoice Service, Carrier authorizes Outgo to communicate with Brokers on Carrier’s behalf as Carrier’s agent for purposes of collections activity.The fee for using the Summary Invoice Service (the “Invoice Processing Fee”) will be communicated through the Services. You can also view Outgo’s pricing information at any time by clicking here (https://www.outgo.co/pricing).
- 6.2 Appointment as AgentEach Carrier hereby appoints Outgo as its payment collection agent for the limited purpose of receiving, holding, and settling payments from Brokers other than payments for Purchased Unpaid Invoices (including Overpayments and misdirected payments). Each Carrier further agrees and understands that any such payment received by Outgo from a Broker, on Carrier’s behalf, shall be considered the same as payment made directly to the Carrier. Such payment shall be deemed to satisfy the Broker’s obligation to pay Carrier, and the Carrier will provide its services to the Broker in the agreed-upon manner as if the Carrier had received the payment directly from the Broker. Each Carrier understands that Outgo’s obligation to pay the Carrier is subject to, and conditional upon, successful receipt of the associated payments from the Broker. Carrier further agrees that Outgo is not required to settle such payment to Carrier in the event that Broker initiates a chargeback, ACH return, or otherwise disputes the payment. In the event that Outgo does not make a payment to Carrier as required by this Agreement, Carrier will have recourse against only Outgo and not against Broker. In accepting appointment as the limited payment collection agent of the Carrier, Outgo assumes no liability for any acts or omissions of the Carrier.
- FACTORING SERVICEThere are some differences in the Factoring Service available to Carriers resident in Florida, Maryland, New Hampshire, or Washington D.C., and the Factoring service in all other U.S. states. As noted below, Carriers in these specified states agree to sell all Unpaid Invoices to Outgo through the Factoring Service. Please ensure you refer to the correct Factoring Service terms that apply to you based on the location of your principal business headquarters.
- 7. 1 Purchase of Invoices
- For Carriers Not Located in Florida, Maryland, New Hampshire, or Washington D.C.:
- Through the Services, Carrier may, in accordance with this Agreement, offer to sell, assign, and transfer to Outgo as absolute owner any of the Carrier’s Unpaid Invoices.
- All requests to sell, assign, and transfer Unpaid Invoices must be submitted electronically through the Outgo Services, by email to docs@outgo.co, or by any other means that Outgo authorizes. To request that Outgo purchase an Unpaid Invoice, Carrier must submit all documentation required by Outgo; such documentation shall include, at a minimum, a Rate Confirmation (Ratecon) and Bill of Lading (BOL). Outgo will provide a list of documentation required at the time of submission, and reserves the right to change the submission process at any time. Upon submitting documentation to Outgo, you agree that Outgo may verify all documentation, including contacting the Broker as needed to verify information in the Unpaid Invoice as well as your interactions with the Broker more generally. You further agree that Outgo may contact the Broker regarding Unpaid Invoices, including to notify the Broker that the Unpaid Invoice has been purchased by or transferred to Outgo. Nothing in this Agreement shall be construed to obligate Outgo to purchase any Unpaid Invoices from Carrier.
- All determinations to approve or reject a Carrier for the Factoring Services or an Unpaid Invoice for purchase by Outgo will be determined in Outgo’s sole discretion. Outgo will only purchase Unpaid Invoices from approved Brokers or factors. Prior approval of an Unpaid Invoice does not guarantee future approval of Unpaid Invoices from the same Broker. Outgo has full discretion whether to approve an Unpaid Invoice for its Factoring Services and reserves the right to refuse to purchase any Unpaid Invoice. Outgo will communicate whether the Unpaid Invoice is approved for purchase electronically. Carrier will be eligible to receive Early Income to its Bank Account.
- Carrier, as a seller, and Outgo, as a buyer, intend that each purchase and sale of Unpaid Invoices under the Agreement is and shall be a true sale of such Unpaid Invoices for all purposes and not a loan arrangement. Each such sale shall be, subject to the terms of the Agreement, absolute and irrevocable, providing Outgo with the full risks and benefits of ownership of such Unpaid Invoices (such that the amounts payable under such Unpaid Invoices would not be property of Carrier’s estate in the event of Carrier bankruptcy). Carrier, as a seller, and Outgo, as a buyer, agree to treat each transfer of Unpaid Invoices for all purposes as a sale on all relevant books, records, financial statements and other applicable documents.
- For Carriers Not Located in Florida, Maryland, New Hampshire, or Washington D.C.:
- For Carriers Located in Florida, Maryland, New Hampshire, or Washington D.C.:
- By entering into the Factoring Service, Carrier agrees to, in accordance with this Agreement, sell, assign, and transfer to Outgo as absolute owner, all of the Carrier’s Unpaid Invoices other than Buyouts, which may be offered to Outgo in Carrier’s discretion and in accordance with Section 7.2.
- Carrier agrees to submit sufficient documentation for all Unpaid Invoices electronically through the Outgo Services, by email to docs@outgo.co, or by any other means that Outgo authorizes. All determinations to approve or reject a Carrier for the Factoring Services or an Unpaid Invoice for purchase by Outgo will be determined in Outgo’s sole discretion. Such documentation shall include, at a minimum, a Rate Confirmation (Ratecon) and Bill of Lading (BOL). Outgo will provide a list of documentation required at the time of submission, and reserves the right to change the submission process at any time. Upon submitting documentation to Outgo, you agree that Outgo may verify all documentation, including contacting the Broker (and, for Buyouts, defined below, the factor) as needed to verify information in the Unpaid Invoice as well as your interactions with the Broker more generally. You further agree that Outgo may contact the Broker at any point regarding Unpaid Invoices, including to notify the Broker that the Unpaid Invoice has been purchased by or transferred to Outgo. Nothing in this Agreement shall be construed to obligate Outgo to purchase any Unpaid Invoices from Carrier.
- All determinations to approve or reject a Carrier for the Factoring Services or an Unpaid Invoice for purchase by Outgo will be determined in Outgo’s sole discretion. Outgo will only purchase Unpaid Invoices from approved Brokers or factors. Prior approval of an Unpaid Invoice does not guarantee future approval of Unpaid Invoices from the same Broker or factor. Outgo has full discretion whether to approve an Unpaid Invoice for its Factoring Services and reserves the right to refuse to purchase any Unpaid Invoice. Outgo will communicate whether the Unpaid Invoice is approved for purchase electronically. Carrier will be eligible to receive Early Income to its Bank Account.
- Carrier, as a seller, and Outgo, as a buyer, intend that each purchase and sale of Unpaid Invoices under the Agreement is and shall be a true sale of such Unpaid Invoices for all purposes and not a loan arrangement. Each such sale shall be, subject to the terms of the Agreement, absolute and irrevocable, providing Outgo with the full risks and benefits of ownership of such Unpaid Invoices (such that the amounts payable under such Unpaid Invoices would not be property of Carrier’s estate in the event of Carrier bankruptcy). Carrier, as a seller, and Outgo, as a buyer, agree to treat each transfer of Unpaid Invoices for all purposes as a sale on all relevant books, records, financial statements and other applicable documents.
- For Carriers Located in Florida, Maryland, New Hampshire, or Washington D.C.:
- 7.2 BuyoutsAt your request and in Outgo’s discretion, Outgo may purchase Unpaid Invoices that you have previously sold to another factor (each, a “Buyout”). In connection with a proposed or contemplated Buyout, Carrier represents and warrants that it shall provide true, accurate and complete information in connection with any existing factoring arrangement, including information about disputed Unpaid Invoices, credit balances or reserves posted with the other factor. Carrier agrees that Outgo may verify all documentation related to such existing factoring arrangement, including contacting the relevant Broker and factor. Carrier further agrees that it shall take all actions necessary to reasonably facilitate the Buyout, including without limitation, executing a Buyout agreement that indemnifies and/or releases Outgo from various costs and losses associated with the Buyout, and releases required by the other factor. Once a Buyout has been effected, any Unpaid Invoices purchased by Outgo from the other factor will be considered a Purchased Unpaid Invoice.
- 7.3 Cessation of Factoring ServicesYou may terminate your use of the Factoring Services at any time, provided that your termination will in no way affect any outstanding Obligations or Outgo’s right to enforce such Obligations. In addition to any other termination rights set forth in this Agreement, your use of the Factoring Services may be terminated by Outgo: (i) at any time (whether or not an Event of Default has occurred) effective ten (10) days after written notice of termination is given by us to you; or (ii) at any time after the occurrence of an Event of Default, without notice, effective immediately.
- 7.4 On Demand Purchase of InvoicesCarrier may also enroll in Outgo’s “On Demand Factoring Service.” The On Demand Factoring Service enables a Carrier to sell Unpaid Invoices in real-time to cover transactions for which Carrier does not have sufficient funds in its Bank Account. CARRIER UNDERSTANDS AND AGREES THAT IF CARRIER ENROLLS IN THE ON DEMAND FACTORING SERVICE AND OUTGO DECIDES TO PURCHASE ELIGIBLE UNPAID INVOICES, FACTORING SHALL OCCUR AUTOMATICALLY WHENEVER CARRIER DOES NOT HAVE SUFFICIENT FUNDS IN ITS CHECKING ACCOUNT TO COVER A PURCHASE MADE USING THE OUTGO CARD. Carrier may view Unpaid Invoices eligible for the On Demand Factoring Service through the Services. However, when On Demand Factoring has been turned on, Carrier agrees that Outgo may, in its discretion, select the eligible Unpaid Invoices to purchase to cover a given transaction. Outgo will generally select Unpaid Invoices for purchase through the On Demand Factoring Service that are closest to maturity. Carrier will only be eligible to receive Early Income from the On Demand Factoring Service when Carrier has a sufficient amount of Unpaid Invoices that Outgo determines are eligible for purchase. Carrier further agrees that Outgo may purchase both whole and partial Unpaid Invoices through the On Demand Factoring Service. The On Demand Factoring Service cannot be used to cover ATM withdrawals; instead, Carrier may use the standard Factoring Service, receive funds to its Bank Account and then withdraw such funds through an ATM. Any Unpaid Invoices that Outgo chooses to purchase will be identified to Supplier through the Services.
- 7. 5 Funding Timelines
- For all Carriers
- Outgo will endeavor to purchase and make payments for the purchase of Unpaid Invoices for which you have requested prompt funding pursuant to the timelines indicated for your applicable Tier on our rates and fees page, which you can access here [https://www.outgo.co/pricing] pursuant to the schedule below.
- You may request the prompt funding through the Outgo Services, by email to docs@outgo.co, or by any other means that Outgo authorizes, subject to the terms of this Agreement.
- Additionally, as described in Section 7.4 above, Outgo will provide payment for Unpaid Invoices approved for funding in real-time to cover transactions for purchases of Unpaid Invoices through the On Demand Factoring Service.
Target Service Levels for Prompt Funding:Pre-Approved BrokersTime for Prompt Funding of Unpaid Invoices or for Explanation of DeclineSubmitted Prior to 1PM PSTNext Business DaySubmitted After 1PM PSTTwo Business DaysNew BrokersTime for Prompt Funding of Unpaid Invoices or for Explanation of DeclineSubmitted Prior to 1PM PSTTwo Business DaysSubmitted After 1PM PSTThree Business DaysOutgo will indicate whether a Broker is pre-approved through the Outgo Services. For Brokers who are not pre-approved by Outgo (i.e. “New Brokers”), Outgo may, in its sole discretion, decline to factor the Unpaid Invoice.- For all Carriers
- For Carriers Located in Florida, Maryland, New Hampshire, or Washington D.C.:
- For all Unpaid Invoices purchased by Outgo other than those purchased through the On Demand Factoring Service and for which you have requested prompt funding, Outgo will make payment for the purchase of Unpaid Invoices on the date that Outgo receives notice of payment from a Broker.
- For Carriers Located in Florida, Maryland, New Hampshire, or Washington D.C.:
- 7.6 Inquiries Related to Factoring Service EligibilityCarrier authorizes Outgo, its agents and representatives and any third party engaged by Outgo, to investigate any references given or any other statements or data obtained from or about Carrier for the purpose of this Agreement so long as Carrier continues to have any obligation to deliver Unpaid Invoices to Outgo as a consequence of this Agreement or for Outgo’s ability to determine Carrier’s eligibility to enter into any future agreement with Outgo.
- 7.7 Right to Unpaid InvoicesOutgo may use the Services or other means to provide notice and instructions regarding the proper remittance location for Unpaid Invoices purchased by Outgo from Carrier. Once Outgo purchases an Unpaid Invoice, Carrier acknowledges and agrees that Outgo’s rights to collect amounts due under such Unpaid Invoices include without limitation the full right and power (a) to notify the Broker that the amounts unpaid on said Purchased Unpaid Invoice have been assigned to Outgo, (b) to contact the Broker (and, for Buyouts, the factor) to verify the amounts owing upon and the validity of said Purchased Unpaid Invoice, and (c) to collect, compromise, sue for, assign, or to enforce collection of said Purchased Unpaid Invoice in any manner, in the name of Outgo, or in the name of any assignee of Outgo, without limitation.With respect to each Purchased Unpaid Invoice, Carrier agrees to provide such documentation supporting and evidencing the Purchased Unpaid Invoice as Outgo shall from time to time request.
- 7.8 Factoring FeeUnpaid Invoices that Outgo purchases will be purchased at a discount relative to the face amount of invoices giving rise to such Unpaid Invoices communicated by Outgo to Carrier at the time of purchase (the “Factoring Fee”). Such Factoring Fee will be displayed through the Services prior to Outgo’s purchase of such Unpaid Invoices. You can also view Outgo’s pricing information at any time by clicking here (https://www.outgo.co/pricing). For Carriers Located in Florida, Maryland, New Hampshire, or Washington D.C., with respect to all Unpaid Invoices purchased by Outgo other than those purchased through the On Demand Factoring Service or for which you have requested prompt funding, the factoring fees will be included in the Invoice Processing Fee, unless modified by Outgo in accordance with this Agreement.At any time prior to Outgo’s purchase of an Unpaid Invoice, Outgo may change the Factoring Fee based on the credit risk of the Broker, as determined by Outgo in Outgo’s sole discretion. Changes in the Factoring Fee will be communicated to Carrier through the Services prior to purchase and reflected here at outgo.co/pricing. If you do not agree with the Factoring Fee then you do not have to participate in the Factoring Services.
- 7.9 Overpayments & Misdirected PaymentsCarrier agrees that all funds it receives for Purchased Unpaid Invoices (whether from a Broker or, in connection with a Buyout, from a factor) will be transferred to Outgo and all funds that are not received for Purchased Unpaid Invoices will be property of Carrier. Carrier accordingly authorizes Outgo to initiate debit entries to Carrier’s Bank Account and to intercept payments on the Purchased Unpaid Invoices made by the Broker (and, for Buyouts, the factor) to collect payment for any amounts due from Carrier arising under this Agreement (and, for Buyouts, an agreement effectuating the Buyout) and as adjustments to any ACH electronic credits made in error to the Bank Account or resulting from fraud.Carrier further acknowledges that it has no right to payments made by a Broker that Outgo determines are in excess of any Purchased Unpaid Invoice (each, an “Overpayment”). Carrier accordingly authorizes Outgo to initiate debit entries to Carrier’s Bank Account to collect Overpayments and refund such Overpayments to the Broker. Outgo will make commercially reasonable efforts to seek confirmation from Carrier or Broker that a payment is an Overpayment prior to refunding a payment to a Broker. Carrier acknowledges that it, not Outgo, is solely responsible for resolving any dispute directly with a Broker in the event that an Overpayment is disputed as between Carrier and Broker. Outgo will not be liable for any loss or damage arising from any mistakenly refunded Overpayments.Outgo acknowledges that it has no right to payments made to Outgo by a Broker for Unpaid Invoices that Outgo has not purchased, other than as an agent for Carrier in accordance with Carrier’s appointment herein. In the event that Outgo inadvertently receives payment by a Broker for an unpurchased Unpaid Invoice, Outgo shall provide such funds to Carrier.Outgo is not responsible for any overdrafts or rejected transactions that may result from Outgo ACH debiting the specified amounts under the terms of this Agreement. The parties agree to be bound by the terms of the NACHA Operating Rules with respect to all electronic fund transfers made via ACH transaction.
- 7.10 Credit Risk; Repurchase of Accounts; Set OffOutgo will assume the Credit Risk on each Unpaid Invoice purchased by Outgo, and Outgo will have no recourse to Carrier if any Unpaid Invoice purchased by Outgo is not collected due solely to the occurrence of an event of assumed Credit Risk occurring, as to any Unpaid Invoice purchased by Outgo. For this purpose, “Credit Risk” means the failure of Broker to pay the Purchased Unpaid Invoice in full when due on its longest maturity solely because of Broker’s Insolvency or financial inability to pay; otherwise Outgo will have full recourse to Carrier for the repurchase and payment of uncollected or disputed Purchased Unpaid Invoices. A Purchased Unpaid Invoice shall be deemed to be “disputed” if (i) the Broker disputes the Purchased Unpaid Invoice based on Carrier’s alleged error or non-performance, including the amount owing, timely delivery of the goods, conformity of the goods or services to the order, or any other aspect of the sale giving rise to the Purchased Unpaid Invoice whatsoever, even if the dispute has no merit, is in bad faith, is unsupported, or is unreasonable; (ii) the Purchased Unpaid Invoice contains mistakes, is not correct, or was sent in error; (iii) the Broker claims a set-off, recoupment, or counterclaim with respect to the Purchased Unpaid Invoice; (iv) the Purchased Unpaid Invoice is not paid due to an Act of God, war, civil strife, or political unrest or impediment; (v) Carrier fails to produce to Outgo, within a reasonable time period of its request, good and sufficient evidence that nonpayment of the Purchased Unpaid Invoice, at or after its maturity, in whole or in part, arose solely from the Broker's Insolvency or financial inability to pay; or (vi) any other failure to pay not rooted solely in the Insolvency or financial inability to pay of the Broker.
- 7.11 Notice of AssignmentUpon approval by Outgo of an Unpaid Invoice for purchase, Carrier agrees, if so instructed by Outgo, to notify the Broker of the contemplated sale, to execute and deliver any document necessary to notify the Broker of the assignment, and to procure, if requested, an acknowledgment and acceptance of the contemplated assignment from the Broker. Outgo may in its sole discretion notify any Broker of Carrier to make payments directly to Outgo. Carrier agrees to fully comply with Outgo’s Notice of Assignment and will not pursue direct payment from Broker in any way.
- 7.12 Security InterestIn the event that this Agreement does not constitute a valid sale, assignment, transfer and conveyance of all right, title and interest of Carrier in the Unpaid Invoices, despite the intent of the parties hereto, Carrier hereby grants Outgo a continuing security interest (“Security Interest”) in and to the following, whether now owned or hereafter acquired or arising and wherever located, as security for the performance by Carrier of its covenants and other obligations to Outgo under this Agreement: (a) the Unpaid Invoices; (b) all other accounts, chattel paper, documents, inventory, equipment, payment intangibles, rights to payment, general intangibles and instruments as those terms are defined in Article 9 of the Uniform Commercial Code as in effect in any applicable jurisdiction (the “UCC”); and (c) all proceeds as such term is defined in Article 9 of the UCC and products, whether tangible or intangible, with respect to the foregoing (the “Collateral”). In such scenario, Carrier agrees to execute any documents or take any action in connection with this Agreement as Outgo deems necessary to perfect or maintain Outgo’s first priority security interest in the Collateral. Carrier further authorizes Outgo to, from time-to-time, file such UCC Financing Statements and other documents as we may deem necessary or appropriate with respect to the sales, assignments and grant of security interests provided for herein or in connection with the transactions contemplated hereby, without your signature thereon.
- 7.13 Carrier Representations, Warranties, CovenantsCarrier warrants, represents, covenants, and agrees that it:
- Shall not (i) grant any extension of time for payment of any Purchased Unpaid Invoice, (ii) compromise or settle any Purchased Unpaid Invoice for less than the full amount thereof, (iii) release in whole or in part any Purchased Unpaid Invoice, (iv) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any Purchased Unpaid Invoice or (v) require, request, or otherwise encourage the Broker to make payment on the Purchased Unpaid Invoice to any third party other than Outgo.
- Each and every Carrier whose invoices are offered for purchase, are independent, Non-related Business Enterprises with respect to any Purchased Unpaid Invoice. Carrier will not obtain factoring or other financing on any Unpaid Invoice purchased by Outgo from any other source, nor shall any affiliated person or entity obtain such factoring or financing.
- Carrier shall not create, incur, assume, or permit to exist any lien or security interest in any Purchased Unpaid Invoice, except for the Security Interest created by this Agreement.
- Carrier will treat Outgo’s purchase of any Unpaid Invoice from Carrier as a sale for tax, accounting and financial reporting purposes.
- Carrier will (i) provide written notice to Outgo prior to voluntarily selling, disposing, transferring or otherwise conveying all or substantially all of its business or assets; and (ii) will obtain the written agreement of any purchaser or transferee who is assuming all of Carrier’s obligations under this Agreement pursuant to documentation satisfactory to Outgo.
- If Carrier is a corporation, limited liability company or other entity, it is and will continue to be duly organized, validly existing and in good standing under the laws of the jurisdiction of your incorporation, organization or other formation. Carrier is and will continue to be qualified and licensed to do business in all jurisdictions in which any failure to do so would have a material adverse effect on Carrier or any of its property.
- Carrier is authorized to enter into this Agreement and perform thereunder.
- Carrier’s name as provided to us is Carrier’s correct legal name and Carrier does not use any other name(s) except as indicated to us. Carrier shall give us at least sixty (60) days’ prior written notice before changing its name or doing business under any other name.
- Carrier has maintained and will maintain at its address complete and accurate books and records, comprising an accounting system in accordance with generally accepted accounting principles.
- Carrier has complied, and will comply, in all material respects, with all provisions of all applicable laws and regulations, including, without limitation, those relating to Carrier’s ownership of real or personal property, the conduct and licensing of its business, and all environmental matters.
- There is no claim, suit, litigation, proceeding or investigation pending or threatened against or affecting Carrier. Carrier will promptly inform us in writing of any claim, proceeding, litigation or investigation in the future threatened or instituted by or against Carrier.
- Should any third-party file a suit or proceeding be instituted by or against us with respect to any Unpaid Invoice or in any manner relating to Carrier, Carrier shall, without any charge or expense to us, make available Carrier and its officers, employees and agents, and your books and records, to the extent that we may deem them reasonably necessary in order to pursue or defend any such suit or proceeding. Carrier will also promptly execute any declaration or give such testimony as is necessary at no cost with respect to the Unpaid Invoices in any such litigation or proceeding.
- The Unpaid Invoices purchased by Outgo are and will remain (i) bona fide obligations created by the rendition of services in the ordinary course of Carrier’s business; (ii) arising out of services provided to a person that is not affiliated with Carrier, directly or indirectly, as part of an “arm’s length” transaction in the ordinary course of Carrier’s business; (iii) net of any returns, discounts, claims, credits and allowances; (iv) not subject to any lien or other encumbrance; and (v) payable to you, or, with respect to Buyouts, payable to the factor that you have identified to us;
- Carrier has not received notice or otherwise learned of actual or imminent bankruptcy, Insolvency, or material impairment of the financial condition of any Broker;
- Carrier is entering this Agreement for business purposes and not as a consumer for personal, family, or household purposes;
- No agreement has been made under which the Broker may claim any deduction or discount against the Purchased Unpaid Invoices;
- If, for any reason, Carrier receives payment of an Purchased Unpaid Invoice or any proceeds into an account or address other than the Account, Carrier shall hold all of the same in trust for us and Carrier shall deliver the same to us within three (3) business days after your receipt thereof, in their original form, duly endorsed; and
- Carrier shall reasonably cooperate with Outgo to investigate and reasons for Broker’s non-payment of a Purchased Invoice.
- 7.14 BankruptcyAs of the date of this Agreement, Carrier does not contemplate and has not filed any petition for bankruptcy protection under Title 11 of the United States Code and there has been no involuntary petition brought or pending against Carrier. Carrier represents that it has not consulted with a bankruptcy attorney within six months prior to the date of this Agreement. Carrier further warrants that as of the date of this Agreement it does not anticipate filing a bankruptcy petition and it does not anticipate that an involuntary petition will be filed against it.
- 7.15 Events of DefaultThe following events will constitute an “Event of Default” under this Agreement: (a) Carrier defaults in the payment of any Obligations or in the performance of any provision hereof, or of any other agreement now or hereafter entered into with Outgo, or any warranty or representation contained herein proves to be false in any way, whether material or immaterial; (b) Carrier grants a security interest in the Purchased Unpaid Invoices to a creditor and/or the Purchased Unpaid Invoices are encumbered by a party other than Outgo; or (d) Carrier violates any term or representation, warranty, or covenant in this Agreement. For avoidance of doubt, a Broker’s Insolvency or financial inability to pay does not constitute an event of default.
- 7.16 Effect of DefaultUpon the occurrence of any Event of Default, in addition to any rights Outgo has under this Agreement or applicable law, Outgo may immediately terminate the Agreement, at which time the full undelivered Purchased Unpaid Invoices will remain due and payable by Broker to Outgo. All rights, powers and remedies of Outgo in connection with this Agreement may be exercised at any time by Outgo after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
- 7.17 Required Notifications
- Carrier is required to give Outgo written notice within 24 hours of (i) a Broker’s filing under Title 11 of the United States Code (ii) receiving notice of an actual or imminent bankruptcy, Insolvency, or material impairment of the financial condition of a Broker.
- Carrier is required to give Outgo seven (7) days’ written notice prior to the closing of any sale of all or substantially all of the Carrier’s assets or stock.
- Carrier will not change its legal name, entity type or state of formation, unless it has provided Outgo with not less than thirty (30) days’ prior notice thereof and has provided Outgo with any documents, agreements and information reasonably requested by the Outgo with respect thereto.
- Carrier shall promptly notify Outgo in writing of any change in your officers or directors, and any material adverse change in the business or financial affairs of Carrier or, to its knowledge, to any Broker.
- Carrier will notify Outgo in the event a payment on a Purchased Unpaid Invoice is paid to a different financial account than Carrier’s Bank Account or bank account designated by Outgo and Carrier further agrees that Outgo has the right to collect such funds from Carrier.
- Carrier will notify Outgo in the event it receives any communication from a factor regarding a Buyout and provide Outgo with a copy of any such written communication or a summary of any such oral communication.
- 7.18 Account StatedOutgo shall, from time to time make available to Carrier through the Services a statement setting forth the Factoring Service transactions arising under this Agreement. Each such statement shall be considered correct and binding upon Carrier as an account stated, except to the extent that Outgo receives, within sixty (60) days after the statement is made available to the Carrier, written notice from Carrier of any specific exceptions by Carrier to that statement, and then it shall be binding against Carrier as to any items to which the Carrier has not objected.
- 7.19 AuthorizationCarrier makes, constitutes and appoints Outgo as Carrier’s true and lawful attorney-in-fact with power of substitution and with power and authority to exercise at any time any of the following powers until all of the Obligations have been paid in full:
- Receive, take, endorse, assign, deliver, accept and deposit, in the name of Outgo or Carrier, any and all proceeds of any Unpaid Invoices purchased by Outgo securing the Obligations or the proceeds thereof, which includes, for the avoidance of doubt, Outgo taking and accepting any payments made by the Broker on or against the Unpaid Invoices purchased by Outgo;
- Take or bring, in the name of Outgo or Carrier, all steps, actions, suits or proceedings deemed by Outgo necessary or desirable to effect collection of or other realization upon the Unpaid Invoice purchased by Outgo;
- Pay any sums necessary to discharge any lien or encumbrance which is senior to Outgo’s security interest in the Purchased Unpaid Invoices, which sums shall be included as Obligations under the Agreement;
- File in the name of Carrier or Outgo or both mechanics lien or related notices;
- Notify any Broker obligated with respect to any Purchased Unpaid Invoices that the underlying Purchased Unpaid Invoice has been assigned to Outgo by Carrier and that payment thereof is to be made to the order of and directly and solely to Outgo;
- Communicate directly with Broker with respect to any payment by Broker or any Unpaid Invoice, including Unpaid Invoices not sold, assigned, or transferred to Outgo, for any reason, including to verify the amount and validity of any Unpaid Invoices created by Carrier;
- After an Event of Default, extend the time of payment of, compromise or settle for cash, credit, return of merchandise, and upon any terms or conditions, any and all Purchased Unpaid Invoices and discharge or release any Broker or other obligor (including filing of any public record releasing any lien granted to Carrier by such Broker), without affecting any of the Obligations;
- File any initial financing statements and amendments thereto that (i) identify the Unpaid Invoices purchased by Outgo; (ii) contain any other information required by part 5 of Article 9 of the UCC for the sufficiency or filing office acceptance of any financing statement or amendment, including whether the Carrier is an organization, the type of organization, and any organization identification number issued to the Carrier; (ii) contain a notification that the Carrier has granted a negative pledge with respect to the Unpaid Invoices purchased by Outgo to Outgo, and that any subsequent lienor may be tortiously interfering with Outgo’s rights; or (iv) advises third parties that any notification of Carrier’s Brokers will interfere with Outgo’s collection rights.
- Carrier authorizes Outgo to accept, endorse and deposit on behalf of Carrier any checks tendered by a Broker “in full payment” of its obligation to Carrier. Carrier shall not assert against Outgo any claim arising therefrom, irrespective of whether such action by Outgo effects an accord and satisfaction of Carrier’s claims, under §3-311 of the Uniform Commercial Code, or otherwise.
Carrier’s attorney-in-fact is hereby granted full power to do all necessary things to accomplish the above as fully and effectively as could Carrier. Carrier ratifies all that the attorney-in-fact shall lawfully do or cause to be done by virtue hereof. The power of attorney shall be irrevocable for the term of the Agreement and until Outgo or its assignee has irrevocably received all payments to which Outgo is or may be entitled from Carrier and Brokers on Purchased Unpaid Invoices. This power of attorney is coupled with an interest. - 7.20 Account DisputesCarrier shall notify Outgo immediately of and, if requested by Outgo, will promptly settle (subject to Outgo’s written approval thereof) all disputes concerning any Unpaid Invoice purchased by Outgo related to Carrier’s error or non-performance, at Carrier’s sole cost and expense. Outgo may, but is not required to, attempt to settle, compromise, or litigate (collectively, “Resolve”) the dispute upon such terms, as Outgo in its sole discretion deems advisable, for Carrier’s account and risk and at Carrier’s sole expense. Upon the occurrence of an Event of Default, Outgo may Resolve such issues with respect to any Purchased Unpaid Invoice of Carrier, and any such resolution shall be deemed commercially reasonable and in good faith.
- CONSENT TO RECEIVE ELECTRONIC DISCLOSURESTo use the Services you will also need to agree to Outgo’s Electronic Communications Agreement.
- REWARDS PROGRAM
- 9. 1 Program OverviewBy opening and maintaining a Provider Bank Bank Account in good standing, you are automatically enrolled in Outgo’s rewards Program (“Outgo Rewards”). Outgo Rewards is part of the Services. However, if you do not open a Bank Account with the Provider Bank, you will not have access to Outgo Rewards nor can you accrue Rewards. The purpose of Outgo Rewards is to reward you for certain Qualifying Purchases (as defined below). You may accrue either free factoring or cash back (“Rewards”) when you make qualifying purchases (each, a “Qualifying Purchase”) using the debit card associated with your Provider Bank Bank Account (the “Outgo Card”). If any Unpaid Invoices were factored to cover all or a portion of the transaction amount of the Qualifying Purchase then Outgo will return the Factoring Fee to you. Otherwise, Outgo will credit your Provider Bank Bank Account with 1.0% of the Qualifying Purchase amount as a Reward.
- 9.2 EligibilityTo participate in Outgo Rewards, your Provider Bank Bank Account must be continuously in good standing. If your Provider Bank Bank Account is not in good standing for any reason, or we determine in our sole discretion that you are misusing Outgo Rewards or have otherwise violated this Agreement, you may be ineligible to earn Rewards, and you may forfeit any Rewards previously earned or accrued. We may temporarily or permanently disqualify you from participating in the Outgo Rewards and/or adjust or cause to be forfeited any or all Rewards accrued as a result of your abusive behavior, fraud, misrepresentation, any violation of law, violation of any other agreement with us or one of our affiliates, or any other violation of any of this Agreement, as determined by us in our sole discretion. Rewards cannot be combined with other discount or reward programs unless specifically authorized by us. We may cancel or forfeit any Rewards you may accrue under Outgo Rewards if you default on any provision of this Agreement, the Deposit Account Agreement or the Cardholder Agreement.
- 9.3 Qualifying PurchasesAll posted purchases you make with your Outgo Card are Qualifying Purchases, subject to the limitations in this paragraph. Excluded transactions include cash withdrawals, transactions that are deemed fraudulent, disputed transactions or transactions subject to chargebacks. We may determine that a transaction type or particular transaction is excluded from eligibility for Rewards accrual at any time. Any Outgo Card transaction conducted or effectuated while you are in default of this Agreement does not qualify as a Qualifying Purchase, unless otherwise permitted by us. We reserve the right to determine, in our sole discretion, whether a particular transaction is a Qualifying Purchase. Rewards are offered solely by Outgo subject to our Rewards Program and not offered by or provided through any merchant.If you return, charge back, cancel, dispute, or otherwise request a refund for a Qualifying Purchase for which you have already received Rewards, we reserve the right to remove any related Rewards amount from your Provider Bank Bank Account, or offset such amount from any future Rewards. If we choose to remove the amount from your Provider Bank Bank Account, you authorize us to debit your Provider Bank Bank Account, regardless of whether this causes the Bank Account to have a negative balance or overdraft, and you agree to provide any documentation or authorizations required to ensure that any such Rewards amount is returned to us.
- 9.4 Rewards MiscalculationsIt is your responsibility to ensure that earned Rewards are properly accrued and credited in accordance with this Agreement. If you think you were eligible for a Reward that was not properly credited to you or on your behalf, we can require that you submit documentary evidence to support your claim that is satisfactory to us. You must send your claim for an improperly credited Rewards within sixty (60) days after the date upon which the credit was applied or you claim such crediting was supposed to have occurred but did not. If you do not file your claim within sixty (60) days, Rewards earned will be deemed accurate and you will have waived any claim for adjustment. We reserve the right (but are not required) to correct inaccurate Rewards, and to adjust Rewards at our sole discretion. If we do not credit, or improperly deny, a Rewards redemption to which you were otherwise entitled, then your exclusive remedy will be the issuance of the improperly denied Rewards redemption, if available, or such other alternative benefit as we in our sole discretion may determine.
- 9.5 TaxesAll amounts paid to you in connection with Outgo Rewards are exclusive of any applicable withholding, sales, use, excise, value added, or other taxes. You acknowledge and agree that you are responsible for determining, paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with Outgo Rewards. We are not responsible for determining whether you owe taxes in connection with your access to or use of Outgo Rewards or for collecting, reporting, or remitting taxes arising from your access to or use of Outgo Rewards, except for our own income taxes.
- 9.6 Additional Rewards Program TermsYou have no rights or other vested legal interest in accrued Rewards until they have been applied to your Provider Bank Bank Account. Rewards may not be transferred or assigned to any other party, and any attempt to do so shall be void and of no legal effect. The sale or barter of any Rewards, other than by us, is expressly prohibited.You may be disqualified from participating in Outgo Rewards and your accrued Rewards may be forfeited if at any time you violate this Agreement, violate applicable law, or misuse your Provider Bank Bank Account or any part of the Services.We may, without prior notice or liability to you, discontinue Outgo Rewards or modify Outgo Rewards by adding or removing features or functionalities, even though such changes may affect Rewards awarded to you. We may limit accrual and redemption of Rewards, including through caps, fees, and expiration. We may also revise the terms governing Outgo Rewards from time to time in our sole discretion, subject to applicable law.
- OUTGO REFERRAL PROGRAM
- 10. 1 Referral Program OverviewBy enrolling in the Services, you are automatically enrolled in Outgo’s referral program (the “Referral Program”). The Referral Program is part of the Services. The purpose of the Referral Program is to reward you for successfully promoting, marketing, and advertising the Services to other carriers.Outgo will provide Carrier will a unique code and/or a unique website link, that when utilized by a carrier, will direct that carrier to the Outgo Service (collectively, the “Affiliate Link”). Outgo may suspend or terminate the Affiliate Link at any time in its sole discretion. Outgo shall have no obligation whatsoever to provide the Outgo Service to any carrier. However, you are eligible for a referral fee for carriers you refer using the Affiliate Link that meet the criteria described below. Outgo will share with you the number of carriers for which you are eligible for a referral fee through the Services.
- 10.2 Referral FeeFor each Qualifying Carrier who (i) initially registers for the Outgo Service using your Affiliate Link, and (ii) subsequently submits to the Services at least five (5) verified rate confirmation and bills of lading for completed loads within the first sixty (60) days following registration for the Services, Carrier will earn, and Outgo will deliver, five hundred dollars ($500) (a “Referral Fee”), subject to the limitations in this Agreement. Any registration for the Outgo Service using the Affiliate Link arising out of Carrier’s violation of Section 10.3 is ineligible for payment.The Parties acknowledge that there can be a large delay in time between when a Qualifying Carrier first interacts with the Outgo Service and when said Qualifying Carrier takes action for which you are eligible to earn a Referral Fee under this section.To be eligible to earn any fees under this section, you must, within the past thirty (30) days, either (i) have funds in its Bank Account held by Provider Bank; or (ii) have submitted to the Outgo Service at least one verified rate confirmation and bill of lading for a completed load.You may earn Referral Fees under this section for no more than thirty (10) referrals per calendar month, which is equal to a maximum payment of fifteen thousand dollars ($5,000) for such referrals. Outgo, in its sole discretion, may waive this limitation on a retroactive or ongoing basis. The terms of this referral program are applicable up to $11,000 in total funds payable by Outgo to eligible participants. Outgo reserves the right to end or extend the referral program at any time in their sole discretion.Outgo will pay you Referral Fees within fifteen (15) days after a Qualifying Carrier has met the criteria giving rise to such payment obligation of Outgo by depositing such amounts to the Carrier’s Bank Account.You will be responsible for and will indemnify and hold Outgo harmless from payment of all Taxes arising from the payment of Referral Fees.
- 10.3 Limits On Referrer’s Activities
- Carrier may not negotiate or enter into any agreement with any carrier on behalf of Outgo. Carrier may not make any representations or warranties concerning the Services to any carrier except as expressly permitted herein.
- Carrier agrees that it shall not participate in any financing negotiation; counsel or advise carriers about financing options from Outgo; participate in the preparation of any Outgo financing documents, including financing applications; gather financing application documentation or deliver the documentation to Outgo; communicate financing decisions or inquiries from Outgo to a carrier; or obtain the carrier’s signature on financing documents, including without limitation the Outgo Platform Agreement.
- Carrier will not attempt to mislead anyone regarding the Outgo Service or Carrier’s relationship with Outgo, whether by affirmative representation, implication, or omission. In particular, Carrier agrees that it will not impersonate any person, suggest that an affiliation or partnership exists with a third party where none exists, or create websites, domains, URLs, social media handles or email addresses containing the word “Outgo.”
- Carrier may not “spam” anyone with the Affiliate Link, and agrees to comply with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”), the Telephone Consumer Protection Act (“TCPA”), and all other applicable laws. The following specific activities are prohibited: (i) mass emailing, texting or messaging carriers without a business relationship to the carrier or adequate authorization to do so; and (ii) use of automated systems, dialers, or bots through any channel to distribute the Affiliate Link.
- Carrier shall not post, in connection with the Affiliate Link or the Referral Program, any of the following: (i) disparaging or defamatory content concerning Outgo or third parties; (ii) offensive, abusive, intimidating or harassing content; (iii) content that is sexually explicit, obscene and/or contains nudity; (iv) names or marks of Outgo’s competitors; (v) images of celebrities or other public or private figures without written consent; and (vi) the brand name or intellectual property of another party without written consent.
- Carrier shall not issue any press release or disseminate similar publicity respecting this Referral Addendum or the relationship between the parties including, without limitation, by means of the Internet, without the express prior written approval of Outgo. Carrier shall not use any trademark, service mark, trade name, or other commercial symbol of Outgo in any manner without prior written approval through Outgo.
- Carrier agrees that it will not defraud or abuse (or attempt to defraud or abuse) Outgo.
- LIMITED LICENSE AND USEOutgo grants Carrier a non-exclusive, limited, non-transferable, and revocable license to use and access the Services solely for its own internal business purposes and subject to this Agreement. Any other use is strictly prohibited.Carrier agrees to comply with all applicable laws and regulations and all third-party payment network or payment clearinghouse rules, guidelines, requirements, and prohibitions when using or accessing the Services.Carrier further agrees that it will not (i) license, sublicense, sell, resell, rent, transfer, assign or distribute its rights to access and use the Services to any other party or otherwise commercially exploit the Services or (ii) access or use the Services in order to (a) build a competitive service or product; (b) build a service or product using similar ideas, features, functions or graphics; (c) monitor its availability, performance or functionality or for any other benchmarking or competitive purposes; or (d) copy any ideas, features or functions of the Services.Upon request, Carrier will permit Outgo to reasonably investigate or audit Carrier’s compliance with the foregoing in connection with Carrier’s use of the Services.
- INTELLECTUAL PROPERTY RIGHTSExcept for the limited license granted to Carrier in this Agreement, Outgo and its third party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the Services, any related technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Carrier or any other party. This Agreement does not convey to Carrier or any other Person any rights of ownership in or related to the Services or any other intellectual property rights of Outgo or any other Person. Outgo’s name, logos and the product names are trademarks or service marks of Outgo or third parties, and no right or license is granted for Carrier to use them.Carrier agrees that any communication or materials it sends to Outgo in connection with its use of the Services, electronically or otherwise, including but not limited to data, questions, comments, survey responses, suggestions or submissions, is and will be treated as non-confidential and non-proprietary and may be used by Outgo for any purpose including, but not limited to modification, reproduction, transmission, disclosure, publication, broadcast, and posting.
- ACCESSCarrier is responsible for all activities that occur through its access to and use of the Services. Carrier shall: (i) keep all related passwords and login IDs confidential and promptly notify Outgo after discovery of any unauthorized use of any password or any other known or suspected breach of security and (ii) not impersonate another user of the Services or provide false information to gain access to or use the Services. Any person accessing any portion of the Services or taking any action on behalf of Carrier represents and warrants to Outgo that it has full authority to do.
- NO WARRANTY; DISCLAIMERTHE CARRIER SERVICES ARE PROVIDED AND MADE AVAILABLE STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. OUTGO DOES NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE SERVICES AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS RELATED THERETO. Outgo is not responsible for outages or disruptions of the Internet and telecommunications infrastructure which are beyond our control and can lead to interruptions in the availability of the Services. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND FREEDOM FROM COMPUTER VIRUSES OR ANY OTHER HARMFUL OR CORRUPTED FILES, ARE HEREBY DISCLAIMED AND OUTGO SHALL HAVE NO LIABILITY OR RESPONSIBILITY RELATED THERETO, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- LIMITATION OF LIABILITYCARRIER’S USE OF THE SERVICES IS AT ITS OWN RISK. NEITHER OUTGO NOR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR OTHER REPRESENTATIVES WILL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, PUNITIVE, SPECIAL, COVER, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR EXAMPLE, LOSS OF GOODWILL, DATA, REVENUE, PROFITS, SAVINGS, USE OR ECONOMIC ADVANTAGE), OR CLAIMS OF THIRD PARTIES ARISING OUT OF, OR RELATING TO, CARRIER’S USE OF OR ACCESS TO THE SERVICES, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY, OR OTHERWISE AND CARRIER HEREBY WAIVES ANY AND ALL RELATED CLAIMS AGAINST OUTGO AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS.
- INDEMNIFICATIONCarrier agrees to indemnify and hold harmless Outgo, its affiliates and their respective officers, directors, employees and agents (the “Indemnified Parties”) against and save the Indemnified Parties harmless from any and all manner of suits, claims, liabilities, demands and expenses (including reasonable attorneys’ fees and collection costs) resulting from or arising out of the use of the Services or marketing of the Services, whether directly or indirectly, including the transactions or relationships contemplated thereby and hereby, and any failure by Carrier to perform or observe its obligations under this Agreement. This paragraph shall exclude any suits, claims, and liability arising solely from Outgo’s gross negligence or willful misconduct.
- COVENANT NOT TO SUECarrier agrees that they will never institute, prosecute or in any way aid in the institution or prosecution of any claim, demand, action or cause of action at law or in equity against the Outgo for a claim of usury, a claim that Outgo is required to have any lending license, or any other claim contending that the amount paid by the Outgo in exchange for the Unpaid Invoices is, or should be construed as, a loan from the Outgo to the Carrier. Nothing in this paragraph is intended to prevent Carrier from complying with any lawfully issued subpoena or court ordered discovery.This Section 17 is a covenant not to sue, and not a release. In the event that the Carrier breaches or in any way violates the terms of this Section 17, Carrier agrees to indemnify the Outgo for all damages arising from that breach, including without limitation the payment of all costs and expenses of every kind for the enforcement of Carrier’s rights and remedies under this section, including any and all attorneys’ fees and costs in any trial court or appellate court proceeding, any administrative proceeding, any arbitration or mediation or any negotiations or consultations in connection with breach of this section.This covenant shall inure to the benefit of Outgo, and shall bind Carrier, its successors and/or assigns, any of their respective affiliated or subsidiary companies, partners, owners, joint ventures and/or any of Carrier’s managers, directors, officers, employers or agents.
- CHOICE OF LAW AND FORUM; JURY TRIAL WAIVERThis Agreement and all acts and transactions under this Agreement and all rights and obligations of ours and yours shall be governed by the laws of the State of Washington. You and we hereby: (i) consent to the jurisdiction and exclusive venue of the courts located in King County, Washington as this contract was entered into and made to performed in the County of King, State of Washington and to service of process in any such action or proceeding by personal delivery or any other method permitted by law; and (ii) waive any and all rights to object to the jurisdiction and venue of any such court including any claims for forum non convenience, or to transfer or change the venue of such action or proceeding. At Outgo’s sole discretion and election, venue is also permissible in any court having jurisdiction over Carrier or Carrier’s assets.ALL PARTIES HERETO WAIVE TO THE FULLEST EXTENT BY LAW THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY.
- TERMINATIONThis Agreement is effective until terminated. Outgo may terminate this Agreement at any time without notice, or suspend or terminate your access to, or use of, the Outgo Services at any time, with or without cause, in Outgo’s absolute discretion and without notice. Any limitation or termination of your access to or use of the Outgo Services will not affect in any way Outgo’s right to and in the Purchased Unpaid Invoices.Outgo further reserves the right to modify or discontinue, either temporarily or permanently, any portions or all of the Services at any time with or without notice.Carrier may terminate this Agreement by providing Outgo with at least 15 days advance written notice, and indefeasible payment of all Obligations by Carrier or other party. No release of lien will be provided until Carrier executes a general release in form and substance acceptable to Outgo.
- TAXESIt is the responsibility of Carrier to determine what, if any, taxes apply to the transactions Carrier completes through the Services, and any profit or loss Carrier obtains therefrom. It is the responsibility of Carrier to collect, report, withhold, and remit the correct taxes to the appropriate tax authorities.
- CONFIDENTIALITYCarrier agrees that certain non-public information provided by Outgo to Carrier, including information relating to the Services or Outgo’s business processes, that is identified by Outgo as confidential or that a reasonable person would understand to be confidential will be held by Carrier in strict confidence and treated as the confidential and proprietary property of Outgo. Carrier will not disclose any of the foregoing to any Person, unless specifically authorized to do so in writing by Outgo or unless required by law.Outgo will take reasonable efforts to maintain in confidence any non-public information provided by Carrier to Outgo that is expressly identified by Carrier as confidential or that a reasonable person would understand to be confidential. Outgo will not disclose confidential and non-public records and information of Carrier to any Person, unless specifically authorized to do so by Carrier or unless required by law.
- USE OF ELECTRONIC RECORDS AND SIGNATURESYou agree that Outgo may provide you notices, disclosures, electronic records, and other communications by posting on the Site, through the Services, by e-mail, by short message service (“SMS”), or by regular mail. We will use the Account Information that we have on file to contact you. Communications to you will be considered received when sent by us to the address or phone number that you have provided in your Account Information. In addition, please note that electronic records and signatures may be used in connection with the execution of ACH authorization forms, acceptance of this Agreement or acceptance of applicable fees.
- SMS MESSAGING AND TELEPHONE CALLS
- 23. 1You consent to receive SMS messages (including text messages), and telephone calls (including prerecorded and artificial voice and autodialed) from us, our agents, representatives, affiliates or anyone calling on our behalf at the specific number(s) you have provided to us, with service-related information such as updates about our purchase of Unpaid Invoices or other information about your use of the Services. You certify, warrant and represent that the telephone number you have provided to us is your business contact number and not someone else’s. You represent that you are permitted to receive calls and text messages at the telephone number you have provided to us on behalf of Carrier. You agree to promptly alert us whenever you stop using a telephone number. Outgo and our agents, representatives, affiliates and anyone calling on our behalf may use such means of communication described in this section even if you will incur costs to receive such phone messages, text messages, e-mails or other means.
- 23.2Standard message and data rates may apply to all SMS messages (including text messages). We may modify or terminate our SMS messaging services from time to time, for any reason, and without notice, including the right to terminate SMS messaging with or without notice, without liability to you.
- NoticeOutgo may give notices regarding the Services to Carrier by sending notice through the Outgo website or any other Outgo web portal used by it in connection with providing the Services, by email or by any other reasonable means of communication. Such notices are deemed given 24 hours after transmission. Carrier agrees that its continued use of the Services thereafter will constitute Carrier’s agreement to any such changes.
- ASSIGNMENT; PARTICIPATIONOutgo may sell participation interests in this Agreement or assign its rights and delegate its duties, in whole or in part, under this Agreement without obtaining Carrier’s consent or approval. Upon such assignment, Carrier shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and shall accept performance under this Agreement by such assignee as if such assignee were Outgo. Carrier may not assign its rights or delegate its duties, in whole or in part, without prior written consent from Outgo, including by operation of law or in connection with any change of control.
- GENERALIf any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision, with all other provisions remaining in full force and effect.Outgo will not be liable for any loss or damage arising from any event beyond Outgo’s reasonable control, including, but not limited to, flood, extraordinary weather conditions, earthquake, or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications, power failure, or equipment or software malfunction.The parties are independent contractors (and, as applicable, buyer and seller of accounts), and no joint venture, partnership, employment, or agency relationship or lender-borrower relationship exists between Carrier and Outgo as a result of the use of the Services. The failure of Outgo to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Outgo in writing. No waiver shall be deemed a continuing waiver or waiver in respect of any subsequent breach or default, whether of similar or different nature, unless expressly so stated in writing. Outgo’s rights and remedies herein are cumulative and not exclusive of each other or of any rights or remedies that Outgo would otherwise have.This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be amended except by a written document executed by authorized representatives of each party. There are no unwritten oral agreements among the parties.All provisions of this Agreement which by their nature should survive termination shall survive termination, including without limitation, Sections 6, 11 through 19, 21, and 24 through 27.
- DEFINITIONSCapitalized terms used herein shall have the following meanings, unless otherwise defined in the Uniform Commercial Code:
- “Broker” means a company that is obligated to pay for the amount of their invoice from Carrier, and includes without limitation, any shipper or consignee.
- “Carrier” means any Person and their affiliates using or accessing the Carrier Services and any related functionality or services.
- “Early Income” means the proceeds from the sale of Unpaid Invoices through the Factoring Service.
- “Insolvent” means that Person’s debts are greater than the sum of its assets or (ii) a general inability of the Person to pay its debts as they become due.
- “Non-related Business Enterprises” means a person with whom Carrier, its principals, officers, relations, employees or agent have no direct or indirect ownership, interest or affiliation.
- “Obligations” means all present and future obligations owing by Carrier to Outgo whether arising under the Agreement or otherwise, and whether arising before, during or after the commencement of any bankruptcy proceeding in which Carrier is a debtor. For the avoidance of doubt, a Carrier will have no Obligations associated with Broker’s Insolvency or financial inability to pay a Purchased Unpaid Invoice.
- “Person” means an individual, a corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a government body.
- “Purchased Unpaid Invoice” means the Unpaid Invoices that Outgo has purchased from Carrier or a factor in accordance with this Agreement, as determined by Outgo in the exercise of its sole business judgment.
- “Qualifying Carrier” means is a motor carrier that is in the business of transporting general freight, as defined by the Federal Motor Carrier Safety Administration, has active operation authority, has been issued a MC or USDOT Number, and is not an existing customer of Outgo, and as determined by Outgo, in its sole discretion to be a Qualifying Carrier. Outgo may deem a carrier that meets the foregoing criteria, except that it transports goods outside of general freight, as a Qualifying Carrier in its sole discretion.
- “Services” means the specific version of Outgo’s factoring service and other services developed, operated, and maintained by Outgo accessible via a designated web site or IP address.
- “Unpaid Invoice” means a future unpaid obligation (including all general intangibles relating to such obligation, all proceeds of the obligation, all guaranties for the obligation, and all goods and rights represented by the obligation) of a Broker to pay Carrier (or, for Buyouts to pay a factor other than Outgo), whether by cash, check, electronic transfer or other form of monetary payment, associated with a claim arising in the ordinary course of Carrier’s business for services provided by Carrier to Broker.