AVIDXCHANGE SUPPLIER SERVICES TERMS AND CONDITIONS, last updated December 18, 2019
AvidXchange, Inc. (together with its affiliates, “AvidXchange”), through its proprietary network and invoice and payment platform (“AvidXchange’s Network”), automates the accounts payable process and facilitates business to business payments. AvidXchange provides and offers certain services to its network of suppliers (each a “Supplier”). “Supplier Services” include AvidPay Direct, AvidXchange Cashflow Manager and Invoice Accelerator and any future or replacement services.
By accessing or using any Supplier Services or AvidXchange’s Network, Supplier acknowledges and agrees to be bound by these AvidXchange Supplier Services Terms and Conditions (the “Terms and Conditions”) and further agrees that AvidXchange and its partners may contact Supplier regarding AvidXchange’s payment processing services, which contact could be made using an automated dialing system. These Terms and Conditions, which are set forth at https://www.avidxchange.com/tc-supplierservices form a part of any agreement (collectively, the “Supplier Services Agreement”), between AvidXchange and Supplier with respect to Supplier’s use of and access to the Supplier Services and AvidXchange’s Network.
- Modifications; Notices
AvidXchange may modify or discontinue any Supplier Service or any feature thereof and any other existing service or feature and may provide new or additional services or features through AvidXchange’s Network, in each case at any time and in its sole discretion. AvidXchange may modify these Terms and Conditions and the AvidXchange Supplier Services Procedures, at any time and in its sole discretion.
AvidXchange may change the fees it charges for the Supplier Services, including the fees it charges for Cashflow Manager, AvidPay Direct and Invoice Accelerator, and any other fees it charges for access to AvidXchange’s Network, in each case at any time and in its sole discretion. Please refer to your Supplier Services Agreement with AvidXchange for current and applicable fees.
AvidXchange will provide Supplier with notice of any such changes to these Terms and Conditions or the Fee Information by sending notice through the AvidXchange website or any other AvidXchange web portal used by it in connection providing the Supplier Services or making AvidXchange’s Network available to Supplier, by email or by any other reasonable means of communication. Supplier agrees that its continued use of the Supplier Services or AvidXchange’s Network thereafter will constitute Supplier’s agreement to any such changes.
- Limited License and Use
AvidXchange grants Supplier a non-exclusive, limited, non-transferable, and revocable license to use and access the Supplier Services and to access AvidXchange’s Network to use the Supplier Services, in each case solely for its own internal business purposes and subject to these Terms and Conditions. Any other use is strictly prohibited.
Supplier 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 Supplier Services or AvidXchange’s Network.
Supplier further agrees that it will not (i) license, sublicense, sell, resell, rent, transfer, assign or distribute its rights to access and use the Supplier Services or AvidXchange’s Network to any other party or otherwise commercially exploit the Supplier Services or AvidXchange’s Network or (ii) access or use the Supplier Services or AvidXchange’s Network 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 Supplier Services or AvidXchange’s Network.
Upon request, Supplier will permit AvidXchange to reasonably investigate or audit Supplier’s compliance with the foregoing in connection with Supplier’s use of the Supplier Services or AvidXchange’s Network.
- Intellectual Property Rights
Except for the limited license granted to Supplier in the Supplier Services Agreement and these Terms and Conditions, AvidXchange and its third party licensors retain all right, title and interest, including all intellectual property rights, relating to or embodied in the Supplier Services and AvidXchange’s Network, any related technology and any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating thereto offered by Supplier or any other party. Neither the Supplier Services Agreement or these Terms and Conditions convey to Supplier or any other Person any rights of ownership in or related to the Supplier Services or AvidXchange’s Network or any other intellectual property rights of AvidXchange or any other Person. AvidXchange’s name, logos and the product names are trademarks or service marks of AvidXchange or third parties, and no right or license is granted for Supplier to use them.
Supplier agrees that all data available from or related to its use of the AvidPay Network is owned exclusively by AvidXchange. Supplier further agrees that any communication or materials it sends to AvidXchange in connection with its use of the AvidXchange Network, 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 AvidXchange for any purpose including, but not limited to modification, reproduction, transmission, disclosure, publication, broadcast, and posting.
- Designated Bank Account
In order to receive electronic payments through AvidXchange’s Network, and to use certain Supplier Services, including AvidPay Direct and Invoice Accelerator, Supplier will need to complete an ACH authorization form provided by AvidXchange and return a fully executed copy of the form signed by its authorized representative to AvidXchange and Supplier’s bank.
Supplier must promptly notify AvidXchange of any changes to its designated bank account information. If AvidXchange incurs any costs, expenses or fines as a result of Supplier’s failure to provide accurate bank account information, its failure to promptly notify AvidXchange of any changes to its bank account information, its failure to take corrective actions as reasonably requested by AvidXchange or its failure to notify its bank of the ACH authorization which results in rejected transactions, Supplier will reimburse and indemnify AvidXchange for these costs, expenses or fines. In addition, AvidXchange reserves the right to suspend or terminate Supplier’s access to any Supplier Services pending resolution of any issues with Supplier’s ACH authorization or bank accounts.
Supplier is responsible for all activities that occur through its access to and use of the Supplier Services and AvidXchange’s Network. Supplier shall: (i) keep all related passwords and user ID’s confidential and promptly notify AvidXchange after discovery of any unauthorized use of any password or user account or any other known or suspected breach of security and (ii) not impersonate another user or provide false information to gain access to or use the Supplier Services or AvidXchange’s Network. Any person accessing any portion of the Supplier Services or AvidXchange’s Network or taking any action on behalf of Supplier represents and warrants to AvidXchange that it has full authority to do.
- No Warranty
THE SUPPLIER SERVICES, INCLUDING CASHFLOW MANAGER, AVIDPAY DIRECT AND AVIDXCHANGE INVOICE ACCELERATOR, AND AVIDXCHANGE’S NETWORK ARE PROVIDED AND MADE AVAILABLE STRICTLY ON AN “AS IS, AS AVAILABLE” BASIS. AVIDXCHANGE DOES NOT WARRANT THE ACCURACY, ADEQUACY, OR COMPLETENESS OF THE SUPPLIER SERVICES OR AVIDXCHANGE’S NETWORK AND EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS RELATED THERETO. 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 AVIDXCHANGE SHALL HAVE NO LIABILITY OR RESPONSIBILITY RELATED THERETO, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Limitation of Liability
SUPPLIER’S USE OF THE SUPPLIER SERVICES AND AVIDXCHANGE’S NETWORK IS AT ITS OWN RISK. NEITHER AVIDXCHANGE 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, SUPPLIER’S USE OF OR ACCESS TO THE SUPPLIER SERVICES OR AVIDXCHANGE’S NETWORK, HOWEVER CAUSED, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PROPRIETARY RIGHTS INFRINGEMENT, PRODUCT LIABILITY, OR OTHERWISE AND SUPPLIER HEREBY WAIVES ANY AND ALL RELATED CLAIMS AGAINST AVIDXCHANGE AND ITS AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS.
Supplier agrees to indemnify and hold harmless AvidXchange, 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 Supplier Services Agreement and use of the Supplier Services and AvidXchange’s Network, whether directly or indirectly, including the transactions or relationships contemplated thereby and hereby (including the enforcement of the Supplier Services Agreement), and any failure by Supplier to perform or observe its obligations under the Supplier Services Agreement and these Terms and Conditions. This paragraph shall exclude any suits, claims, and liability arising solely from AvidXchange’s gross negligence or wilful misconduct. These obligations shall survive termination of the Supplier Services Agreement.
Supplier represents and warrants that:
(a) It agrees to be bound by these Terms and Conditions;
(b) It is fully authorized to enter into the Supplier Services Agreement and to perform under the Supplier Services Agreement;
(c) The Supplier Services Agreement constitutes its legal, valid and binding obligation; and
(d) Supplier is solvent and in good standing in the jurisdiction of its organization.
Supplier agrees that certain non-public information provided by AvidXchange to Supplier, including information relating to the Supplier Services its business processes, that is identified by AvidXchange as confidential or that a reasonable person would understand to be confidential will be held by Supplier in strict confidence and treated as the confidential and proprietary property of AvidXchange. Supplier will not, except in the due performance of its duties or the enforcement of its rights under the Supplier Services Agreement, disclose any of the foregoing to any Person, unless specifically authorized to do so in writing by AvidXchange or unless required by law.
AvidXchange will take reasonable efforts to maintain in confidence any non-public information provided by Supplier to AvidXchange that is expressly identified by Supplier as confidential or that a reasonable person would understand to be confidential. AvidXchange will not disclose confidential and non-public records and information of Supplier to any Person, unless specifically authorized to do so by Supplier or unless required by law and except in the due performance of its duties or the enforcement of its rights under the Supplier Services Agreement.
- Counterparts and Use of Electronic Records and Signatures
Electronic records and signatures may be used in connection with the execution of the Supplier Services Agreement, ACH authorization forms, acceptance of these Terms and Conditions or acceptance of applicable fees. The Supplier Services Agreement may be executed in as many counterparts as necessary or convenient, including both counterparts that are executed on paper and counterparts that are electronic records and executed electronically, and by the different parties on separate counterparts each of which, when so executed (and any copy of an executed counterpart that is an electronic record) shall be deemed an original but all such counterparts shall constitute but one and the same agreement. Delivery of a manually executed paper counterpart of the Supplier Services Agreement (or of any agreement or document required by the Supplier Services Agreement and any amendment to the Supplier Services Agreement) by telecopy or other electronic imaging means shall be as effective as delivery of such manually executed paper counterpart of the Supplier Services Agreement.
AvidXchange may give notices regarding the Supplier Services, including Cashflow Manager, AvidPay Direct and AvidXchange Invoice Accelerator, and AvidXchange’s Network to Supplier, including any such changes to these Terms and Conditions or the Fee Information, by sending notice through the AvidXchange website or any other AvidXchange web portal used by it in connection providing the Supplier Services or making AvidXchange’s Network available to Supplier, by email or by any other reasonable means of communication. Such notices are deemed given 24 hours after transmission. Supplier agrees that its continued use of the Supplier Services or AvidXchange’s Network thereafter will constitute Supplier’s agreement to any such changes.
Any legal notice concerning Supplier’s obligations or rights under the Supplier Services Agreement shall be sent in writing by confirmed facsimile, by nationally recognized overnight delivery service or by email and shall be deemed given upon receipt. AvidXchange shall use Supplier’s then current contact information on record in AvidXchange’s account information for all notices. Supplier may give notice to AvidXchange (such notice shall be deemed given when received by AvidXchange) at any time by any of the following: letter sent by confirmed facsimile to AvidXchange at the following fax number: 980-859-4049; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to AvidXchange at the following address: AvidXchange, Inc., 1210 AvidXchange Lane, Charlotte, NC 28206, addressed to the attention of: Legal Department.
Only AvidXchange may assign its rights and delegate its duties under the Supplier Services Agreement. Upon such assignment, Supplier shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and shall accept performance under the Supplier Services Agreement by such assignee as if such assignee were AvidXchange.
The Supplier Services Agreement and these Terms and Conditions shall be deemed made in, and governed by the laws of, the state of North Carolina without regard to the choice or conflicts of law provisions of any jurisdiction.
THE PARTIES AGREE THAT ALL DISPUTES AND CONTROVERSIES OF ANY NATURE (WHETHER IN CONTRACT, TORT OR OTHERWISE) ARISING OUT, RELATING TO, OR IN CONNECTION WITH THE SUPPLIER SERVICES AND SUPPLIER’S USE THEREOF AND AVIDXCHANGE’S NETWORK, THE SUPPLIER SERVICES AGREEMENT AND THESE TERMS AND CONDITIONS WILL BE GOVERNED BY THE LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD TO THE CHOICE OR CONFLICTS OF LAW PROVISIONS OF ANY JURISDICTION AND WILL BE RESOLVED ON AN INDIVIDUAL BASIS WITHOUT RESORT TO ANY FORM OF CLASS ACTION AND NOT CONSOLIDATED WITH THE CLAIMS OF ANY OTHER PARTIES.
THE PARTIES AGREE THAT ALL ACTIONS ARISING OUT, RELATING TO, OR IN CONNECTION WITH THE SUPPLIER SERVICES AGREEMENT, THE SUPPLIER SERVICES AND SUPPLIER’S USE THEREOF AND AVIDXCHANGE’S NETWORK, AND THE RELATIONSHIPS RESULTING THEREFROM OR THE VALIDITY, SCOPE, INTERPRETATION OR ENFORCEABILITY OF THE CHOICE OF LAW AND VENUE PROVISION OF THE SUPPLIER SERVICES AGREEMENT AND THESE TERMS AND CONDITIONS SHALL BE BROUGHT IN EITHER (I) THE STATE COURTS OF THE STATE OF NORTH CAROLINA SITTING IN MECKLENBERG COUNTY OR (II) THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA OR (III) ANY STATE COURT OF AVIDXCHANGE’S CHOOSING, AND THE PARTIES EXPRESSLY AGREE TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS.
If any provision of the Supplier Services Agreement or the Terms and Condition 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.
The parties are independent contractors and no joint venture, partnership, employment, or agency relationship or lender-borrower relationship exists between Supplier and AvidXchange as a result of the Supplier Services Agreement or use of the Supplier Services or AvidXchange’s Network. The failure of AvidXchange to enforce any right or provision in the Supplier Services Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by AvidXchange 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. AvidXchange’s rights and remedies herein are cumulative and not exclusive of each other or of any rights or remedies that AvidXchange would otherwise have.
All provisions of the Supplier Services Agreement and these Terms and Conditions which by their nature should survive termination shall survive termination, including Supplier Services – Sections 2, 3, 6, 7, 8, 10 and 14, AvidPay Direct – Section 3 and AvidXchange Invoice Accelerator – Sections 3, 4, 5, 7, 8, 12, 13, 14 and 15 of these Terms and Conditions.
AvidPay Direct is a program designed to eliminate paper checks, facilitate electronic payments among AvidXchange’s growing network of businesses and provide Supplier with enhanced remittance information. AvidPay Direct allows Supplier to receive electronic payments and enhanced remittance information from AvidXchange for payments from certain of Supplier’s customers that are also customers of AvidXchange.
The following additional terms and conditions apply to Supplier’s use of AvidPay Direct:
- Settlement and Remittance Information; Transactions
For valid transactions cleared through AvidPay Direct, AvidXchange will make a settlement disbursement to Supplier’s designated bank account and provide to Supplier remittance information which typically includes: (i) gross amount due to Supplier, (ii) invoice and/or account reference, (iii) summary of transaction charges, if any, and (iv) the amount disbursed to Supplier.
AvidXchange may elect, in its sole discretion, not to process any given transaction through AvidPay Direct.
AvidXchange charges fees on a per transaction basis for each electronic payment Supplier receives through AvidPay Direct. Please refer to your Supplier Services Agreement with AvidXchange for current and applicable fees.
There are currently no monthly, annual or start up fees to use AvidPay Direct. AvidXchange does not aggregate or consolidate multiple AvidPay Direct payments when calculating fees.
Supplier authorizes AvidXchange to ACH debit all fees, expenses and other amounts due or owing under or in connection with the Supplier Services Agreement from Supplier’s designated bank account.
AvidXchange may also deduct fees and amounts due from future settlements relating to Supplier’s use of the Supplier Services including AvidPay Direct and Invoice Accelerator.
Supplier fees are typically settled as follows:
Payment/Disbursement Date Fees Settled by AvidXchange
- ACH Authorization; Payment Corrections; Monitoring
In order to receive electronic payments through AvidPay Direct, Supplier will need to complete an ACH authorization form provided by AvidXchange and return a fully executed copy of the form signed by its authorized representative to AvidXchange and Supplier’s bank. Supplier must promptly notify AvidXchange of any changes to its designated bank account information and must take any corrective actions as reasonably requested by AvidXchange in the event there are any issues with Supplier’s ACH authorization or bank account information. If AvidXchange incurs any costs, expenses or fines as a result of Supplier’s failure to provide accurate bank account information or its failure to promptly notify AvidXchange of any changes to its bank account information, Supplier will reimburse and indemnify AvidXchange for these costs, expenses or fines.
All fees and other amounts due under the Supplier Services Agreement relating to the use of AvidPay Direct will be withdrawn by ACH from Supplier’s designated bank account by AvidXchange, and by using AvidPay Direct, Supplier hereby grants AvidXchange all rights to do so and agrees to take any action reasonably requested by AvidXchange in connection with the foregoing. Supplier further agrees that AvidXchange has the right to take all actions necessary to correct any payments made to Supplier in error, including payments made as the result of fraud or deceit, and authorizes AvidXchange to ACH debit Supplier’s account or offset future settlements to recoup such payments. Supplier also acknowledges that AvidXchange may elect not to process certain transactions through AvidPay Direct.
If there are insufficient funds in Supplier’s account to cover any fees or other amounts owed by Supplier in connection with its use of the Supplier Services or AvidXchange’s Network, AvidXchange may charge Supplier a fee or penalty and Supplier will reimburse AvidXchange for any fines or expenses it incurs in connection with the foregoing.
AVIDXCHANGE CASHFLOW MANAGER
AVIDXCHANGE INVOICE ACCELERATOR
AvidXchange Invoice Accelerator is an offering included with AvidXchange Cashflow Manager that allows a Supplier, at its option, to sell eligible invoices to AvidXchange and receive payment on such invoices within one (1) to two (2) business days. Only invoices that are submitted through AvidXchange’s Network and that meet certain criteria are eligible.
The following terms and conditions apply to Supplier’s use of AvidXchange Invoice Accelerator:
- Sale, Purchase and Billing
Supplier may, in accordance with these Terms and Conditions and any Supplier Services Procedures, offer to sell to AvidXchange as absolute owner each of Supplier’s Eligible Accounts, as hereinafter defined. Supplier, as a seller, and AvidXchange, as a buyer, intend that each purchase and sale of all right, title and interest to Invoices under this Agreement is and shall be a true sale of such Invoices (and the amounts due thereunder) for all purposes and not a loan arrangement. Each such sale shall be, subject to the terms of this Agreement, absolute and irrevocable, providing AvidXchange with the full risks and benefits of ownership of such Invoices (such that the amounts payable under such Invoices would not be property of Supplier’s estate in the event of Supplier bankruptcy). Supplier, as a seller, and AvidXchange, as a buyer, agree to treat each transfer of an Invoice for all purposes as a sale on all relevant books, records, financial statements and other applicable documents.
Supplier is not obligated to offer any specific Account to AvidXchange for purchase.
AvidXchange may purchase from Supplier such Eligible Accounts as AvidXchange determines. AvidXchange is not obligated to purchase any Accounts.
AvidXchange may use AvidXchange Cashflow Manager, the Supplier Services or other means to provide notice and instructions to Account Debtors regarding the proper remittance location for Purchased Invoices. Once AvidXchange purchases an Invoice, Supplier acknowledges and agrees that AvidXchange’s rights to amounts due under such Invoice include without limitation the full right and power (a) to notify the Account Debtor that the amounts due or to become due upon said Invoice have been assigned to AvidXchange, (b) to contact the Account Debtor to verify the amounts owing upon and the validity of said Invoices, and (c) to collect, compromise, sue for, assign, or to enforce collection of said Invoices in any manner, in the name of AvidXchange, or in the name of any assignee of AvidXchange, without limitation. Payments on Purchased Invoices made by Account Debtors will be credited by AvidXchange to its own bank account, and not to the bank account of Supplier.
With respect to each Purchased Invoice, Supplier agrees to provide such documentation supporting and evidencing the Purchased Invoice as AvidXchange shall from time to time request.
- Purchase Price; Payments
AvidXchange shall pay to Supplier the Purchase Price for an Invoice that AvidXchange wishes to purchase on the date communicated by AvidXchange to Supplier or otherwise specified in Cashflow Manager or in the AvidXchange Supplier Services Procedures.
AvidXchange shall pay the Purchase Price of any Purchased Invoice, less any fees or amounts due to AvidXchange from Supplier under the Supplier Services Agreement or these Terms and Conditions or as otherwise specified in the AvidXchange Supplier Services Procedures. For current and applicable fees please refer to your Supplier Services Agreement with AvidXchange.
AvidXchange is authorized to initiate debit entries to Supplier’s bank account and to intercept payments on the Purchased Invoice made by the Account Debtor through AvidXchange’s Network in each case to collect payment for any amounts due from Supplier for Invoice Accelerator or arising under the Supplier Services Agreement and these Terms and Conditions and as adjustments to any ACH electronic credits made in error to the bank account or resulting from fraud.
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.
Fees related to Supplier’s receipt of electronic payments, including through AvidPay Direct, may be incremental to the fees for AvidXchange Invoice Accelerator. Upon payment of the Purchase Price for an Account, the Account shall be a Purchased Invoice.
- Credit Risk; Repurchase of Accounts; Set Off
Without limiting the foregoing; AvidXchange may require that Supplier repurchase any of the following on demand:
AvidXchange will assume the Credit Risk on each Purchased Invoice, and AvidXchange will have no recourse to Supplier if any Purchased Invoice is not collected due solely to the occurrence of an event of assumed Credit Risk occurring, as to any Invoice. For this purpose, “Credit Risk” means the Account Debtor’s Insolvency.
(a) Any Purchased Invoice, the payment of which has been disputed by the Account Debtor obligated thereon, or against which the Account Debtor has asserted (with or without justification) a defense, offset, counterclaim, or right of return or cancellation. AvidXchange is under no obligation to determine the legitimacy or enforceability of such defense, offset, counterclaim, or right of return or cancellation.
(b) Any Purchased Invoice regarding which Supplier has breached any warranty as set forth in these Terms and Conditions.
(c) All Purchased Invoices upon the occurrence of an Event of Default, or upon the termination date of the Supplier Services Agreement.
(d) Any Purchased Invoice that remains unpaid on the Late Payment Date (as defined below), unless the Account Debtor of such Purchased Invoice is Insolvent on or after the Late Payment Date.
(e) Any portion of any Purchased Invoice that is subject to retainage or other or similar withholdings for which Supplier received payment from AvidXchange.
For any repurchased Purchased Invoice, Supplier shall pay to AvidXchange the then-unpaid Face Amount of the Purchased Invoice, together with any unpaid fees relating to the Purchased Invoice, on the next banking day following the date of receipt by Supplier of the repurchase demand.
At AvidXchange’s option, AvidXchange may set off the amount due from Supplier for a Purchased Invoice that AvidXchange is requiring the Supplier to repurchase, and any related fees, expenses or other owed amounts, against any amount owed to Supplier by AvidXchange and/or any and all other amounts to be paid to Supplier through AvidXchange’s Network irrespective of whether such amounts are being paid by the Account Debtor (and whether or not such payments are made on the Purchased Invoice) or by a different customer of Supplier that is making payments to Supplier through AvidXchange’s Network.
- Security Interest
In the event that, notwithstanding Supplier and AvidXchange’s mutual intent, the transfer and assignment contemplated under this Agreement is not held to be a sale, Supplier hereby grants AvidXchange a security interest in the Purchased Invoices and all proceeds arising thereunder. In no event shall AvidXchange be a fiduciary of the Supplier, although Supplier may be a fiduciary of AvidXchange.
- Supplier Covenants
Supplier shall not (a) grant any extension of time for payment of any Eligible Accounts, (b) compromise or settle any Eligible Accounts for less than the full amount thereof, (c) release in whole or in part any Eligible Accounts, (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any Eligible Accounts or (e) require, request or otherwise encourage the Account Debtor to make payment on the Eligible Accounts or any Purchased Accounts outside AvidXchange’s network or directly to Supplier.
Each and every Supplier whose accounts are offered for purchase, are independent, Non-related Business Enterprises with respect to Account Debtors for any Eligible Accounts. Supplier will not obtain factoring or other financing on any Purchased Invoice from any other source, nor shall any affiliated person or entity obtain such factoring or financing.
Supplier shall not create, incur, assume or permit to exist any lien or security interest in the Eligible Accounts or the Purchased Invoices, except for the Security Interest created by the Supplier Services Agreement and these Terms and Conditions.
Supplier shall pay to AvidXchange on the next banking day following the date of receipt by Supplier the amount of any payment on account of a Purchased Invoice.
- Representations and Warranties
Supplier represents and warrants that:
(a) The Purchased Invoices are and will remain (i) bona fide existing obligations created by the sale and delivery of goods or the rendition of services in the ordinary course of Supplier’s business; (ii) unconditionally owed and will be paid to AvidXchange without defenses, disputes, offsets, counterclaims, or rights of return or cancellation; and (iii) arising out of sales to an entity that is not affiliated with Supplier, directly or indirectly, as part of an “arm’s length” transaction in the ordinary course of Supplier’s business.
(b) Supplier has not received notice or otherwise learned of actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any applicable account debtor regarding Purchased Invoices.
- Indemnification; Avoidance Claims
Supplier agrees to indemnify and hold harmless AvidXchange from any loss arising out of the assertion of any Avoidance Claim and shall pay to AvidXchange on demand the amount thereof. Supplier shall notify AvidXchange within two business days of it becoming aware of the assertion of an Avoidance Claim. These obligations shall survive termination of the Supplier Services Agreement.
Events of Default. The following events will constitute an Event of Default under the Supplier Services Agreement: (a) Supplier defaults in the payment of any Obligations or in the performance of any provision hereof, including if Supplier fails to repurchase a Purchased Invoice in accordance with the terms hereof, or of any other agreement now or hereafter entered into with AvidXchange, or any warranty or representation contained herein proves to be false in any way, whether material or immaterial, (b) Supplier becomes subject to any debtor-relief proceedings, (c) upon AvidXchange’s learning of any material adverse change in Supplier’s business, (d) AvidXchange for any reason, in good faith, deems itself insecure with respect to the prospect of repayment or performance of the Obligations, or (e) Supplier grants a security interest in the Purchased Invoices to another creditor and/or the Purchased Invoices are encumbered by a party other than AvidXchange.
Effect of Default.
(a) Upon the occurrence of any Event of Default, in addition to any rights AvidXchange has under the Supplier Services Agreement and these Terms and Conditions or applicable law, AvidXchange may immediately terminate the Supplier Services Agreement, at which time all Obligations shall immediately become due and payable without notice; and/or
(b) The Late Charge shall accrue and is payable on demand on any Obligation not paid when due; and/or
(c) Any collection fees incurred due to Supplier’s Default shall be owed to AvidXchange without setoff or demand.
- Supplier Services Procedures
The procedures set forth herein below the heading “Supplier Services Procedures”, if any, are part of the Supplier Services Agreement and may be amended, changed, added to or deleted at any time by AvidXchange, in its sole discretion. Any such amendments, changes, additions or deletions are effective when provided or made available in accordance with these Terms and Conditions.
- Calculation of Purchase Price
The purchase price for an Eligible Account shall be the Face Amount of the Eligible Account being purchased less the then-current fee Administrative Fee (“Purchase Price”). The formula and variables for calculating the Administrative Fee shall be communicated to Supplier prior to selling the Purchased Invoice through the Service, Cashflow Manager and/or the AvidXchange Supplier Services Procedures. For current and applicable fees, please refer to your Supplier Services Agreement with AvidXchange. Fees may be updated or changed in any manner by AvidXchange from time to time, in its sole discretion.
The updated or changed formula shall apply to the calculation of the Administrative Fee for all Eligible Accounts purchased on or after the date that the updated or changed formula becomes effective. The formula for calculating the Administrative Fee may vary depending on optional parameters set by AvidXchange and selected by Supplier via the Supplier Services.
- Account Stated
AvidXchange shall, from time to time, make available to Supplier a statement setting forth the AvidXchange Invoice Accelerator transactions arising under the Supplier Services Agreement. Each such statement shall be considered correct and binding upon Supplier as an account stated, except to the extent that AvidXchange receives, within sixty (60) days after the statement is made available to the Supplier in accordance with the Notice provisions of the Supplier Services Agreement, written notice from Supplier of any specific exceptions by Supplier to that statement, and then it shall be binding against Supplier as to any items to which the Supplier has not objected.
- Continuation of Security Interest; Accounting for Repurchased Invoices
Notwithstanding any termination of the Supplier Services Agreement, so long as any amounts owing to AvidXchange under the Supplier Services Agreement remain unpaid, (i) AvidXchange’s security interest in the Purchased Invoices and related proceeds shall continue in full force and effect, and (ii) any payments on Repurchased Invoices and other unpaid Accounts Receivable will continue to be collected by AvidXchange as collecting agent for Supplier and as security for any Obligations of Supplier due or to become due under the Supplier Services Agreement. Upon receipt by Supplier of any amounts tendered in payment of such Repurchased Invoices and other Accounts Receivable, the full amount thereof shall be remitted by Supplier to AvidXchange to assure proper accounting of the payment. AvidXchange will thereafter forward to Supplier Supplier’s share of such billing, less any adjustments, deductions or offsets permitted under the Supplier Services Agreement.
Supplier irrevocably authorizes AvidXchange at Supplier’s expense, to exercise at any time any of the following powers until all of the Obligations have been paid in full:
(a) Receive, take, endorse, assign, deliver, accept and deposit, in the name of AvidXchange or Supplier, any and all proceeds of any Purchased Invoices securing the Obligations or the proceeds thereof, which includes, for the avoidance of doubt, AvidXchange taking and accepting any payments made by the Account Debtor on or against the Purchased Invoices through AvidXchange’s Network;
(b) Take or bring, in the name of AvidXchange or Supplier, all steps, actions, suits or proceedings deemed by AvidXchange necessary or desirable to effect collection of or other realization upon the Purchased Invoices;
(c) Pay any sums necessary to discharge any lien or encumbrance which is senior to AvidXchange’s security interest in any assets of Supplier, which sums shall be included as Obligations under the Supplier Services Agreement, and in connection with which sums the Late Charge shall accrue and shall be due and payable;
(d) File in the name of Supplier or AvidXchange or both, (i) mechanics lien or related notices, or (ii) claims under any payment bond, in connection with goods or services sold by Supplier in connection with the improvement of realty, or (iii) a Power of Attorney which enables AvidXchange to be copied on all correspondence from and/or represent Supplier before the Internal Revenue Service, and communicate with the Internal Revenue Service (including Internal Revenue Service Forms 2848 and 8821);
(e) Notify any Account Debtor obligated with respect to any Account, that the underlying Account has been assigned to AvidXchange by Supplier and that payment thereof is to be made to the order of and directly and solely to AvidXchange;
(f) Communicate directly with Account Debtors to verify the amount and validity of any Account created by Supplier.
(g) 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 Accounts and discharge or release any account debtor or other obligor (including filing of any public record releasing any lien granted to Supplier by such account debtor), without affecting any of the Obligations;
(h) After an Event of Default, set off the amount due from Supplier for a Purchased Invoice that AvidXchange is requiring the Supplier to repurchase, and any related fees, expenses or other owed amounts, against any amount owed to Supplier by AvidXchange and/or any and all other amounts to be paid to Supplier through AvidXchange’s Network irrespective of whether such amounts are being paid by the Account Debtor (and whether or not such payments are made on the Purchased Invoice) or by a different customer of Supplier that is making payments to Supplier through AvidXchange’s Network;
(i) File any initial financing statements and amendments thereto that (i) identify the Purchased Invoices; (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 Supplier is an organization, the type of organization, and any organization identification number issued to the Supplier; (ii) contain a notification that the Supplier has granted a negative pledge with respect to the Purchased Invoices to AvidXchange, and that any subsequent lienor may be tortuously interfering with AvidXchange’s rights; or (iv) advises third parties that any notification of Supplier’s Account Debtors will interfere with AvidXchange’s collection rights.
(j) Supplier authorizes AvidXchange to accept, endorse and deposit on behalf of Supplier any checks tendered by an account debtor “in full payment” of its obligation to Supplier. Supplier shall not assert against AvidXchange any claim arising therefrom, irrespective of whether such action by AvidXchange effects an accord and satisfaction of Supplier’s claims, under §3-311 of the Uniform Commercial Code, or otherwise.
(k) From time to time as requested by AvidXchange, AvidXchange or its designee shall have access, during reasonable business hours if prior to an Event of Default and at any time if on or after an Event of Default, to all premises where Purchased Invoices are located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Purchased Invoices, including Supplier’s books and records, and Supplier shall permit AvidXchange or its designee to make copies of such books and records or extracts therefrom as AvidXchange may request. Without expense to AvidXchange, AvidXchange may use any of Supplier’s personnel, equipment, including computer equipment, programs, printed output and computer readable media, supplies and premises for the collection of accounts and realization on other Collateral as AvidXchange, in its sole discretion, deems appropriate. Supplier hereby irrevocably authorizes all accountants and third parties to disclose and deliver to AvidXchange at Supplier’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Supplier.
- Account Disputes
Supplier shall notify AvidXchange promptly of and, if requested by AvidXchange, will settle all disputes concerning any Purchased Invoice, at Supplier’s sole cost and expense. AvidXchange may, but is not required to, attempt to settle, compromise, or litigate (collectively, “Resolve”) the dispute upon such terms, as AvidXchange in its sole discretion deem advisable, for Supplier’s account and risk and at Supplier’s sole expense. Upon the occurrence of an Event of Default AvidXchange may Resolve such issues with respect to any Account of Supplier.
- No Lien Termination without Release
In recognition of the AvidXchange’s right to have its attorneys’ fees and other expenses incurred in connection with the Supplier Services Agreement secured by the Purchased Invoices, notwithstanding payment in full of all Obligations by Supplier, AvidXchange shall not be required to record any terminations or satisfactions of any of AvidXchange’s liens on the Purchased Invoices unless and until Complete Termination has occurred. Supplier understands that this provision constitutes a waiver of its rights under §9-513 of the UCC.
Capitalized terms used herein, the Supplier Services Agreement or the AvidXchange Supplier Services Procedures shall have the following meanings, unless otherwise defined in such documents or the Uniform Commercial Code:
(a) “Account” means a right to payment of a monetary obligation based upon Supplier’s ordinary course of business.
(b) “Account Debtor” means any person obligated on a Purchased Invoice.
(c) “Administrative Fee” means the fee assessed by AvidXchange for the purchase of an Eligible Account.
(d) “Avoidance Claim” means any claim that any payment received by AvidXchange is avoidable under the Bankruptcy Code or any other debtor relief statute.
(e) “Closed” means a Purchased Invoice is closed upon receipt of full payment by AvidXchange from an Account Debtor or from the Supplier.
(f) “Eligible Account” means an Account that is posted by Supplier for collection from the Account Debtor through the Service, has been tendered by Supplier for sale to AvidXchange in accordance with these Terms and Conditions and the AvidXchange Supplier Services Procedures, and is acceptable for purchase as determined by AvidXchange in the exercise of its sole credit or business judgment.
(g) “Events of Default” is defined in AvidXchange Invoice Accelerator – Section 8 of these Terms and Conditions.
(h) “Face Amount” means the face amount due on an Account at the time of purchase.
(i) “Invoice” means the document that evidences or is intended to evidence an Account.
(j) “Insolvent” means that the Account Debtor has failed to pay a Purchased Invoice solely as a result of (i) the sum of the Account Debtor’s debts being greater than the sum of its assets or (ii) a general inability of the Account Debtor to pay its debts as they become due. Insolvency is presumed in cases where either (i) AvidXchange has reasonably determined that an Account Debtor has become Insolvent, or (ii) a voluntary or involuntary petition is filed to declare the Account Debtor bankrupt or to allow reorganization or refinancing under a plan to meet the debts of the Account Debtor under any applicable bankruptcy law. In all other cases, the burden of proof for establishing the insolvency of an Account Debtor shall rest solely on the Supplier, with it being presumed that at all relevant times an Account Debtor is not Insolvent.
(k) “Late Charge” shall mean interest accruing on any outstanding amounts at 2% per month or, if less, the maximum rate permitted by applicable law.
(l) “Late Payment Date” means, for each Purchased Invoice, 90 days after the date the Account was purchased.
(m) “Non-related Business Enterprises” means a person with whom Supplier, its principals, officers, relations, employees or agent have no direct or indirect ownership, interest or affiliation.
(n) “Obligations” means all present and future obligations owing by Supplier to AvidXchange whether arising under the Supplier Services Agreement or otherwise, and whether arising before, during or after the commencement of any bankruptcy proceeding in which Supplier is a Debtor.
(o) “Person” means an individual, a corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a government body.
(p) “Supplier” means any Person and their affiliates using or accessing the Supplier Services or AvidXchange’s Network and any related functionality or services.
(q) “Purchase Price” means the price AvidXchange agrees to pay for a Purchased Account.
(r) “Purchased Invoices” means invoices or payments purchased under the Supplier Services Agreement which have not been Closed.
(s) “Repurchased” means an Account has been repurchased when Supplier has paid to AvidXchange the then unpaid Face Amount plus all unpaid fees to date due by Supplier.
(t) “Service” means the specific edition of AvidXchange’s online requisitioning and payables management, billing, data analysis, and other services identified during the ordering process, developed, operated, and maintained by AvidXchange accessible via www.avidxchange.com or another designated web site or IP address, or ancillary services rendered to Customer by AvidXchange, to which Supplier has been granted access.
(u) “Supplier Services Agreement” means the agreement entered into between AvidXchange and the Supplier with respect to the Supplier Services and AvidXchange’s Network, incorporating these Terms and Conditions, as well as any amendments or supplements thereto.
(v) “Supplier Services Procedures” means procedures established by AvidXchange from time to time that are related to the terms and administration of Invoice Accelerator and any other Supplier Services.
SUPPLIER SERVICES PROCEDURES
AvidXchange may establish additional procedures (the “Supplier Services Procedures”) from time to time related to the terms and administration of the Supplier Services Agreement and use of the Supplier Services. The Supplier Services Procedures will be included in and be deemed a part of these Terms and Conditions and will be communicated to Supplier in accordance with these Terms and Conditions.