There 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 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.
7.2 Buyouts
At 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 Services
You 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 Invoices
Carrier 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 Brokers
Time for Prompt Funding of Unpaid Invoices or for Explanation of Decline
Submitted Prior to 1PM PST
Next Business Day
Submitted After 1PM PST
Two Business Days
New Brokers
Time for Prompt Funding of Unpaid Invoices or for Explanation of Decline
Submitted Prior to 1PM PST
Two Business Days
Submitted After 1PM PST
Three Business Days
Outgo 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 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.
7.6 Inquiries Related to Factoring Service Eligibility
Carrier 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 Invoices
Outgo 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 Fee
Unpaid 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 Payments
Carrier 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 Off
Outgo 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 Assignment
Upon 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 Interest
In 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, Covenants
Carrier 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 Bankruptcy
As 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 Default
The 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 Default
Upon 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 Stated
Outgo 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 Authorization
Carrier 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 Disputes
Carrier 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.