1. Modifications
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 the AvidXchange 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 and any other fees it charges for access to the AvidXchange Network, in each case at any time and in its sole discretion.2. 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 the AvidXchange 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 the AvidXchange 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 the AvidXchange Network to any other party or otherwise commercially exploit (beyond those rights explicitly provided to Supplier in the Supplier Services Agreement) the Supplier Services or the AvidXchange Network or (ii) access or use the Supplier Services or the AvidXchange 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 the AvidXchange 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 the AvidXchange Network.
3. 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 the AvidXchange 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 the AvidXchange 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.
Except for Supplier’s Data which is owned by Supplier and subject to the confidentiality and privacy obligations set forth in Section 10, Supplier agrees that all data available from or related to the AvidXchange Network and the use thereof by Supplier that is not specific to and does not identify Supplier, including all technical, aggregated or anonymized data, 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, but excluding Supplier’s Data, 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.
4. Designated Bank Account
In order to receive electronic payments through the AvidXchange Network, and to use certain Supplier Services, including Payment 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.
5. Access
Supplier is responsible for all activities that occur through its access to and use of the Supplier Services and the AvidXchange 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 the AvidXchange Network. Any person accessing any portion of the Supplier Services or the AvidXchange Network or taking any action on behalf of Supplier represents and warrants to AvidXchange that it has full authority to do so.6. No Warranty
THE SUPPLIER SERVICES, INCLUDING THE AVIDXCHANGE SUPPLIER HUB AND PAYMENT ACCELERATOR 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 THE AVIDXCHANGE 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.7. Limitation of Liability
SUPPLIER’S USE OF THE SUPPLIER SERVICES AND THE AVIDXCHANGE 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 THE AVIDXCHANGE 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.8. Indemnification
Supplier agrees to indemnify and hold harmless the Indemnified Parties against 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 the AvidXchange 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. Supplier’s obligations hereunder shall exclude any suits, claims, and liability arising solely from AvidXchange’s gross negligence or willful misconduct. These obligations shall survive termination of the Supplier Services Agreement.9. Representations
Supplier represents and warrants that:10. Confidentiality
Supplier agrees that certain non-public information provided by AvidXchange to Supplier, including information relating to the Supplier Services and 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 Supplier’s Data. Unless authorized by Supplier or required by law (including in response to any subpoena or other order of a court), AvidXchange will not disclose confidential and non-public records and information of Supplier to any Person except as may be required (i) to provide services to Supplier and to Supplier’s customers using AvidXchange services, (ii) to make payments to Supplier, (iii) to conduct OFAC screenings, to comply with the Bank Secrecy Act or Anti-Money Laundering regulations, or to respond to a demand or request from a government agency, banking partner of AvidXchange, or processing partner of AvidXchange in connection with AvidXchange’s or any such partner’s compliance with such screenings, acts, or regulations, or (iv) to enforce its rights under the Supplier Services Agreement. For additional information relating to AvidXchange’s use of information, please refer to AvidXchange’s Privacy Policy at https://www.avidxchange.com/privacy-notice/. AvidXchange may modify the Privacy Policy from time to time by posting it to the above referenced website.11. Counterparts and Use of Electronic Records and Signatures
Electronic records and signatures may be used in connection with Supplier’s acknowledgement, acceptance, and execution of various agreements, disclosures and other documentation related to the services provided by AvidXchange, including without limitation, the Supplier Services Agreement, ACH authorization forms, acceptance of these Terms and Conditions or acceptance of applicable fees. The Supplier Services Agreement and other agreements 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.
Supplier hereby agrees to the electronic delivery and receipt of all agreements, authorizations, notices, disclosures or other communications in connection with the services provided by AvidXchange, including via any portal or application it may use on the AvidXchange platform or to email or text contact addresses or phone numbers that Supplier has provided to AvidXchange. All such communications are deemed to have been received at the time they are sent to Supplier. In order to access and retain electronic information provided by AvidXchange, Supplier will need a computer or similar device with an internet connection, a compatible web browser, access to the email that Supplier has provided to AvidXchange for its account and sufficient storage space to save any of the documents or other communications provided electronically by AvidXchange or a printer to print them. Supplier may request a paper copy of any electronic communication or documents or may withdraw its consent to receive communications electronically, by contacting supplier care at https://www.avidxchange.com/supplier-care. AvidXchange reserves the right to charge a fee for each paper copy, or copy in alternative media, requested and to close Supplier’s user account if Supplier elects to withdraw your consent to receive additional electronic communications.
Supplier expressly agrees to immediately update its account information if it changes. If Supplier’s email account becomes invalid or AvidXchange has reason to believe that it has been compromised in any way, AvidXchange reserves the right to close the account and Supplier will need to re-enroll with a valid email account, subject to AvidXchange’s compliance requirements.
12. Notice; Contact Authorization
AvidXchange may give notices regarding the Supplier Services, including the AvidXchange Supplier Hub and Payment Accelerator, including any such changes to these Terms and Conditions, by sending notice through the AvidXchange website or any other AvidXchange web portal used by it in connection with providing the Supplier Services or making the AvidXchange 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 the AvidXchange Network thereafter will constitute Supplier’s agreement to any such changes.
Notwithstanding the foregoing, notice of applicable fees will be provided to Supplier via the AvidXchange Supplier Hub.
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, via the AvidXchange Supplier Hub, 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.
By accessing or using any Supplier Services or the AvidXchange Network, Supplier further agrees and authorizes that AvidXchange and its partners may from time to time contact Supplier regarding AvidXchange’s payment processing services. This contact could be made using an automated dialing system.
13. Assignment
Only AvidXchange may assign its rights and delegate its duties under the Supplier Services Agreement. Further, AvidXchange may assign any such rights or duties separately from any other of its rights or duties hereunder. Upon any such assignment, Supplier shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and, if applicable, shall accept performance under the Supplier Services Agreement by such assignee as if such assignee were AvidXchange.14. General
(i) 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.
(ii) 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 THE AVIDXCHANGE SUPPLIER 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.
(iii) 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 THE AVIDXCHANGE 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.
14.2 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.
14.3 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 the AvidXchange 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.
14.4 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 and AvidXchange Payment Accelerator – Sections 4, 5, 6, 7, 8, 9, 13, 14, 15, 16, and 17.
The AvidXchange Supplier Hub is a web-based, self-service portal that allows Suppliers to access and view enhanced invoice and payment details. The use of the portal is subject to the website terms of use contained or referenced in the portal. The terms of use are in furtherance, and not in limitation, of the Supplier Services Agreement, these Terms and Conditions and the Supplier Services Procedures. Payment Accelerator is an offering included with the AvidXchange Supplier Hub.
The following terms (the “Payment Accelerator Terms”) apply to Payment Accelerator, a commercial financing program that enables Supplier (subject to qualification) to access liquidity through an open-end line of credit tied to the Supplier’s acceleration of one or more Eligible Accounts. To effect a draw on the open-end line of credit, Supplier can opt to accelerate certain Eligible Accounts by selling the associated Invoices to FPP Enterprise LLC, an affiliate of AvidXchange. Amounts received by AvidXchange for such Purchased Invoices are, upon receipt, applied to Supplier’s then-outstanding Payment Accelerator Balance. In the event the accelerated invoices are not paid by Account Debtors, as described below (or for other reasons specific herein), AvidXchange may require Supplier to repurchase such Purchased Invoices; upon repurchase, AvidXchange shall credit the Face Amount of the Invoices that are repurchased by the Supplier to the Supplier’s then-outstanding Payment Accelerator Balance. As used herein in relation to Payment Accelerator, all references to AvidXchange shall be deemed a reference to FPP Enterprise LLC.
Supplier acknowledges and agrees that AvidXchange makes no commercial financing offer in connection with Payment Accelerator unless and until Supplier is provided with certain commercial financing disclosures via the Supplier Hub. Supplier acknowledges and agrees that, as a condition of participating in Payment Accelerator and to obtaining financing through the Payment Accelerator program, Supplier must read, review, and execute any such commercial financing disclosures prior to accepting Supplier’s offer to participate. Supplier further acknowledges and agrees that each commercial financing offer incorporates these Terms and Conditions.
Payment Accelerator is a full-recourse, commercial financing program and an open-end credit product that may require Supplier to repurchase Purchased Invoices on demand as set forth in Section 4 below. Payment Accelerator differs in certain respects from prior iterations of the “Invoice Accelerator” program, which is not a credit program. Supplier acknowledges that any participation in Payment Accelerator shall be subject solely to this Supplier Services Agreement, including these Payment Accelerator Terms, and any prior terms entered with respect to Invoice Accelerator shall not apply.
In addition to all other terms set forth in the Supplier Services Agreement, the following terms and conditions, as well as the fees disclosed to the Supplier via the AvidXchange Supplier Hub apply to Supplier’s use of the Payment Accelerator program and are hereby incorporated into, and form an essential part of the Supplier Services Agreement:
1. Underwriting; Termination
Before participating in Payment Accelerator, Supplier will be subject to underwriting by AvidXchange. Supplier represents that all information provided to AvidXchange, including business address and ownership information, is in all respects true and accurate, and will promptly notify AvidXchange of any changes to this information. Based on the underwriting information provided by Supplier, AvidXchange will determine the Supplier’s qualifying eligibility and the Approved Credit Limit for purposes of the Supplier’s participation in Payment Accelerator.
AvidXchange has no obligation to extend credit to Supplier, and AvidXchange may discontinue the purchase of Eligible Accounts from Supplier and/or terminate Supplier’s participation in Payment Accelerator, in each case at any time and in AvidXchange’s sole discretion. Until such time as AvidXchange discontinues the purchase of Eligible Accounts from Supplier and/or terminates Supplier’s participation in Payment Accelerator, Supplier will have continued availability to finance Eligible Accounts and draw an amount equal to the Approved Credit Limit minus the Face Amount of all Purchased Invoices outstanding.
2. 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.
AvidXchange may purchase from Supplier such Eligible Accounts as AvidXchange determines. AvidXchange is not obligated to purchase any Accounts.
Supplier, as a seller, and AvidXchange, as a buyer, intend that each purchase and sale of all right, title and interest to Invoices under the Supplier Services Agreement is and shall be a sale of such Invoices (and the amounts due thereunder). Each such sale shall be, pursuant to these Payment Accelerator Terms, 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), subject to the Supplier’s repurchase obligations as set forth in Section 4 below.
Supplier is not obligated to offer any specific Account to AvidXchange for purchase except as set forth herein. Supplier may opt to accelerate individual Eligible Accounts by offering them for sale to AvidXchange or elect to offer to sell to AvidXchange all of its Eligible Accounts (the “Auto-Accelerate Option”), in each case up to the Approved Credit Limit. If a Supplier chooses the Auto-Accelerate Option, once AvidXchange has paid the Purchase Price for an Account, such Invoice shall be considered a Purchased Invoice for all purposes hereunder, without further action by such Supplier. Supplier may cancel the Auto-Accelerate Option at any time by contacting AvidXchange customer service; provided that all Eligible Accounts will still be considered offered to AvidXchange until AvidXchange confirms receipt of such cancellation by Supplier.
AvidXchange may use the AvidXchange Supplier Hub, the AvidXchange Network, or other means to provide notice and instructions to Account Debtors regarding the proper remittance location for Purchased Invoices.
3. Purchase Price; Payments
AvidXchange shall extend credit to Supplier subject to these Terms and Conditions in the amount of the Purchase Price communicated by AvidXchange to Supplier or otherwise specified in the AvidXchange Supplier Hub or in the AvidXchange Supplier Services Procedures, less any fees or amounts due to AvidXchange from Supplier. For current and applicable fees please refer to the fees disclosed to the Supplier via the AvidXchange Supplier Hub. Supplier acknowledges and agrees that the AvidPay Direct fee applicable to accelerated payments on invoices under the Payment Accelerator program may differ from the AvidPay Direct fee applicable to invoice payments that have not been accelerated, in which event the AvidPay Direct fee disclosed in connection with any accelerated payment will be charged in lieu of Supplier’s AvidPay Direct fee for a standard, non-accelerated payment.
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 Payment Accelerator. Upon payment of the Purchase Price for an Account, the Account shall be a Purchased Invoice.
4. Rights to Amounts; Repurchase of Accounts; Set Off
Supplier acknowledges and agrees that AvidXchange’s rights to amounts due in connection with Purchased Invoices 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, (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, and (d) to initiate debit entries from Supplier’s bank account and/or to instruct the financial institution, holding payments made to Supplier in connection with Purchased Invoices, to initiate debit entries from such financial institution’s custodial account, in each case to collect payment for any amounts due from Supplier for Payment 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 custodial account, or resulting from fraud.
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.
Although AvidXchange will be purchasing the Purchased Invoices, Supplier will retain certain credit risk of such Invoices due to Supplier’s repurchase obligations as set forth below.
AvidXchange may require that Supplier repurchase any of the following on demand:
(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 representation, warranty or covenant 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 portion of any Purchased Invoice that is subject to retainage or other or similar withholdings for which Supplier received payment from AvidXchange.
(e) Any Purchased Invoice that remains unpaid for more than ninety (90) days past the date that AvidXchange purchased such Purchased Invoice.
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; upon receipt, AvidXchange shall credit such amounts to the then-outstanding Payment Accelerator Balance.
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 the AvidXchange 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 the AvidXchange Network. Upon such setoff, AvidXchange shall credit such amounts to the then-outstanding Payment Accelerator Balance.
5. Conditional Security Interest
Notwithstanding Supplier and AvidXchange’s mutual intent that the transfers and assignments of Invoices contemplated under this Supplier Services Agreement are sales, Supplier hereby grants AvidXchange a security interest in the Purchased Invoices and all proceeds arising thereunder (the “Conditional Security Interest”). The Conditional Security Interest will be effectively granted as of Supplier’s entry into the Supplier Services Agreement. In no event shall AvidXchange be a fiduciary of the Supplier, although Supplier may be a fiduciary of AvidXchange.6. Supplier Covenants
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. Supplier also agrees to respond to AvidXchange, upon reasonable request, promptly and in no event later than 5 business days from such request, to any inquiries from AvidXchange regarding the receipt by Supplier of any payments on account of any Purchased Invoice. Further, upon the reasonable request of AvidXchange, the Supplier agrees to promptly provide, and in no event later than 5 business days from such request, documentation reasonably satisfactory to AvidXchange demonstrating that it has not received payment on account of a Purchaser Invoice and other information reasonably relating to the status of the invoice. For the avoidance of doubt, Supplier’s failure to comply with the foregoing shall be considered an Event of Default under these Terms and Conditions.
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 Invoices outside the AvidXchange 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 on any Purchased Invoice.
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 Conditional Security Interest that may be created under Section 5 of these Terms and Conditions.
7. Representations and Warranties
Supplier represents and warrants that:
(a) Each Purchased Invoice is and will remain (i) a bona fide existing obligation created by the sale and delivery of goods or the rendition of services by Supplier in the ordinary course of Supplier’s business conducted in a manner compliant with applicable law; (ii) undisputed, including with respect to the cost or quality of services rendered or products sold by Supplier, (iii) unconditionally owed and will be paid to AvidXchange without defenses, disputes, offsets, counterclaims, or rights of return or cancellation; and (iv) invoices arising out of sales to an Account Debtor that is at least eighteen years old, not deceased and not affiliated with Supplier, directly or indirectly, as part of an “arm’s length” transaction in the ordinary course of Supplier’s business;
(b) No Purchased Invoice is or will be (i) subject to or restricted by any receivership, insolvency or bankruptcy proceeding, or (ii) subject to any dispute between Supplier and the Account Debtor;
(c) Immediately prior to the sale thereof to AvidXchange, Supplier is the sole owner of such Purchased Invoice and has good and marketable title thereto, and has the right to assign, sell and transfer such Purchased Invoice to AvidXchange free and clear of any lien, pledge, charge, claim, security interest or other encumbrance, and Supplier has not sold, assigned or otherwise transferred or conveyed any right or interest in or to such Purchased Invoice, has not pledged such Purchased Invoice as collateral for any debt or other purpose, nor has Supplier authorized the filing of, or aware of the filing of, any financing statements against Supplier that include a description of collateral covering any portion of such Purchased Invoice;
(d) Supplier has not received notice or otherwise learned of actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any Account Debtor, or notice of any litigation, arbitration or other proceeding involving the Account Debtor associated with a Purchased Invoice; and
(e) Supplier operates as, and is paid as, a business entity. Supplier’s participation in Payment Accelerator is for business purposes only, and not for personal, family or household purposes.
8. Notice and Advance Claims
Supplier shall notify AvidXchange within two (2) business days of it becoming aware of the assertion of any Avoidance Claim.9. Defaults
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 under any provision herein, including if Supplier fails to repurchase a Purchased Invoice in accordance with the terms hereof or fails to pay to AvidXchange any amounts received on account of 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 good faith determination that its continued performance under this Supplier Services Agreement would subject AvidXchange to material regulatory, operational or reputational risk, or (d) 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.
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 do any one or more of the following:
(a) Immediately terminate the Supplier Services Agreement, at which time all Obligations shall immediately become due and payable without notice; and/or
(b) Charge a Late Charge which shall accrue and is payable on demand on Obligations not paid when due; and/or
(c) Declare that any collection fees incurred due to such Event of Default shall be owed by Supplier to AvidXchange without set off or demand.
10. Prepayment
Supplier has a prepayment right and may repurchase any Purchased Invoice, which has not yet been paid to Avidxchange by the Account Debtor, by paying to AvidXchange the then-unpaid Face Amount of the Purchased Invoice, together with any unpaid fees relating to the Purchased Invoice. Supplier shall give AvidXchange irrevocable written notice of prepayment no later than three business days before the business day on which such prepayment is to be made.11. Calculation of Purchase Price; Change in Fees
The purchase price for an Eligible Account shall be the Face Amount of the Eligible Account being purchased less the then-current fee Finance Charge (“Purchase Price”). The formula and variables for calculating the Finance Charge shall be communicated to Supplier prior to selling the Purchased Invoice through the Service, the AvidXchange Supplier Hub and/or the AvidXchange Supplier Services Procedures. For current and applicable fees, please refer to the fees disclosed to you via the AvidXchange Supplier Hub. Fees may be updated or changed in any manner by AvidXchange from time to time, in its sole discretion. Should, at any time, new disclosures be legally required to be provided to Supplier in connection with the Supplier’s continued participation in Payment Accelerator, such disclosures shall be made by AvidXchange as part of the extension of a new offer by AvidXchange to Supplier to participate in the Payment Accelerator credit program.
Updated or changed fees shall apply to the calculation of the Finance Charge for all Eligible Accounts purchased on or after the date that the updated or changed fees become effective. Finance Charges may vary among Supplier participating in Payment Accelerator.
12. Account Statement
AvidXchange shall, from time to time, make available to Supplier a statement setting forth the Payment 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.13. 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) any Conditional Security Interest held by AvidXchange 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.14. Authorization
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 the AvidXchange 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 the Conditional Security Interest held by AvidXchange 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 and payment status thereof;
(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 as permitted under these Terms and Conditions, 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 the AvidXchange 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 the AvidXchange 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 of office acceptance or filing 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; (iii) 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) advise 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.
15. 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.16. No Lien Termination without Release
In recognition of 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.
17. Choice of Law for Payment Accelerator Terms
Solely for purposes of these Payment Accelerator Terms, California law governs these Payment Accelerator Terms without regard to principles of conflicts of law that would require the application of the laws of another jurisdiction. The Supplier and AvidXchange each irrevocably and unconditionally submit to the exclusive jurisdiction of the State and Federal courts in Santa Clara County, California; provided, however, that nothing in these Payment Accelerator Terms shall be deemed to operate to preclude AvidXchange from bringing suit or taking other legal action in any other jurisdiction with respect to the Payment Accelerator Terms, or to enforce a judgment or other court order in favor of AvidXchange. Each party hereto expressly, irrevocably and unconditionally submits and consents in advance to such jurisdiction in any action or suit commenced in any such court, and each party hereto hereby irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may have based upon lack of personal jurisdiction, improper venue, or forum non conveniens and hereby irrevocably and unconditionally consents to the granting of such legal or equitable relief as is deemed appropriate by such court.Capitalized terms used herein, in the Supplier Services Agreement, or in 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) “AvidXchange” means AvidXchange, Inc. and its affiliates.
d) “AvidXchange Network” means AvidXchange’s proprietary network and invoice and payment platform.
e) “Approved Credit Limit” means, with respect to a Supplier on any date of determination, the maximum credit limit provided by AvidXchange to such Supplier on such date, which credit limit amount shall be determined by AvidXchange in its sole discretion. The Approved Credit Limit may be increased or decreased by AvidXchange at any time.
f) “Auto-Accelerate Option” is defined in Section 2 of the Payment Accelerator Terms.
g) “Avoidance Claim” means any claim that any payment received by AvidXchange is avoidable under the Bankruptcy Code or any other debtor relief statute.
h) “Closed” means a Purchased Invoice is closed upon receipt of full payment by AvidXchange from an Account Debtor or from the Supplier.
i) “Conditional Security Interest” is defined in Section 5 of the Payment Accelerator Terms.
j) “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.
k) “Events of Default” is defined in Section 9 of the Payment Accelerator Terms.
l) “Face Amount” means the face amount due on an Account at the time of purchase.
m) “Finance Charge” means the fee assessed by AvidXchange for the purchase of an Eligible Account.
n) “Indemnified Parties” means Avidxchange, Inc. and FPP Enterprise LLC, their affiliates, and their respective officers, directors, employees and agents.
o) “Insolvent” means that the Account Debtor has failed to pay a Purchased Invoice 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.
p) “Invoice” means the document that evidences or is intended to evidence an Account.
q) “Late Charge” means interest accruing on any outstanding amounts at 2%per month or, if less, the maximum rate permitted by applicable law.
r) “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.
s) “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.
t) “Person” means an individual, a corporation, partnership, limited liability company, association, trust, unincorporated organization, or other legal entity or organization, or a government body.
u) “Payment Accelerator” means that commercial financing program offered by FPP Enterprise, LLC that enables Suppliers (subject to qualification) to access liquidity through an open-end line of credit tied to the Suppliers’ acceleration of one or more Eligible Accounts and may require a Supplier to repurchase Purchased Invoices on demand as set forth in Section 4 of the Payment Accelerator Terms.
v) “Payment Accelerator Balance” means the Supplier’s then-outstanding available credit balance under the Payment Accelerator program, which balance can never exceed the Approved Credit Limit.
w) “Payment Accelerator Terms” is defined in the introduction to AvidXchange Payment Accelerator.
x) “Purchase Price” is defined in Section 11 of the Payment Accelerator Terms.
y) “Purchased Invoice” or “Purchased Invoices” means an invoice or invoices or a payment or payments purchased by AvidXchange under the Supplier Services Agreement which have not been Closed.
z) “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.
aa) “Resolve” is defined in Section 15 of the Payment Accelerator Terms.
bb) “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.
cc) “Supplier” or “Suppliers” means any Person, Persons, and their affiliates using or accessing the Supplier Services or the AvidXchange Network and any related functionality or services.
dd) “Supplier’s Data” means 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, e.g., bank account information or personal information.
ee) “Supplier Services” means those certain services offered and provided by AvidXchange which include the AvidXchange Supplier Hub and Payment Accelerator, an offering of FPP Enterprise LLC, an affiliate of AvidXchange, and any future or replacement services.
ff) “Supplier Services Agreement” means the agreement entered into between AvidXchange and the Supplier with respect to the Supplier Services and the AvidXchange Network, incorporating these Terms and Conditions and the Supplier Services Procedures, as well as any amendments or supplements thereto.
gg) “Supplier Services Procedures” means procedures established by AvidXchange from time to time that are related to the terms and administration of the Supplier Services Agreement and use of the Supplier Services.
hh) “Terms and Conditions” means these AvidXchange Supplier Services Terms and Conditions; the AvidXchange Supplier Services Terms and Conditions are organized under the headings “Supplier Services.” “AvidXchange Supplier Hub,” “AvidXchange Payment Accelerator,” “Supplier Services Procedures,” and “Definitions.”
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