DP Truck Solutions Inc. (DPTS) is in the business of buying accounts receivable prior to the date when they become due, at a discount from face value. DPTS requires that potential clients who wish to sell accounts receivable to DPTS enter into a Master Agreement in the form hereof, which will apply to the purchase and assignment of all accounts receivable, which may occur between DPTS and an Authorized Representitive of the Company attempting to sell their recievables(The Assignor). DPTS also requires that, for each particular account receivable that Assignor wishes to sell to DPTS. Assignor must submit a written offer to sell to DPTS on DPTS’ current form of Assignment of Accounts Receivable form (hereinafter, called an “Assignment”), which DPTS may elect to either accept or reject, in whole or in part, in DPTS’ sole discretion, and, if accepted, the contact between the parties relating to the account or accounts receivable accepted for purchase shall consist of the collective terms and conditions of this Master Agreement and of the particular Assignments concerned.
PURCHASES AND ASSIGNMENT OF ACCOUNTS
a. Assignor does hereby assign to DPTS all of the rights, and interest in the accounts receivables they are receiving payment for. Each purchase and assignment of an Account shall be upon the terms and conditions, which are contained in this Agreement.
b. Once an Account is purchased and assigned, DPTS is to receive full payment directly from the party liable for payment of the Account (hereinafter called the “Debtor’). In addition to the sale and assignment of all of Assignor’s rights in the Accounts. Assignor hereby specifically grants to DPTS a full and irrevocable Power of Attorney to collect, receive, in its name, any and all amounts due or to become due under the Accounts. If DPTS is unable to collect the account receivable that was purchased in good faith for any reason, it is the responsibility of the Assignor to repay DPTS all monies advanced to them from DPTS upon 30 day written notice.
c. The purchase price of the Accounts purchased and assigned shall be calculated in accordance with the terms of Assignment which pertains to that Account.
d. Assignor gives full and absolute authority and power to DPTS and its representatives to endorse, negotiate and deposit for the benefit of DPTS as fully as Assignor itself could do, and in the name of Assignor, any and all checks, warrants, drafts and other negotiable instrument, naming Assignor as Payee, which represent payment of all or any portion of any one or more of the Accounts.
WARRANTIES AND REPRESENTATIONS
a. Assignor does hereby warrant and represent to DPTS that each of the statements set forth below shall be true and correct with respect to each Account.
i. Assignor has full right, power and authority to enter into this Agreement and each Assignment.
ii. Assignor is the sole and absolute owner of each Account in the amount indicated upon the Assignment covering such Account. All information shown with respect to any Accounts on each Assignment, and all other documents prepared or submitted by Assignor to DPTS, are entirely true and correct and no fact or circumstance exists which makes such information misleading, and that no documents have been changed or altered before being submitted for payment to DPTS.
iii. Assignor shall hold in trust for DPTS, and shall promptly deliver to DPTS, without cashing or depositing all checks, warrants, drafts, and the like which represent payment for all or any portion of the Accounts which Assignor may receive, from time to time, with respect to Accounts from Debtors, notwithstanding the purchase of Accounts by DPTS and any notice of such purchase which may be given to such Debtors, understanding that it is unlawful for Assignor to retain and deprive DPS of such payment and that there may be both criminal and civil penalties for failure to turn over such instruments to DPTS. Assignor grants to DPTS the right of access to Assignor’s books and business records at any reasonable time for the purpose of verification by DPTS that all obligations owing from Assignor to DPTS have been fully and completely satisfied by Assignor.
In the event of any breach of any of the foregoing warranties and representations, Assignor shall hold DPTS harmless from and against any and all claims, losses, damages liabilities, costs, and expenses (including reasonable attorney’s fees) which may be incurred by or asserted against DPTS arising from, related to or in connection with such breach. Said indemnification shall extend to costs incurred by DPTS in the enforcement of its security interest.
NONPAYMENT BY DEBTORS
In addition to any other remedies which may otherwise be available to DPTS, Assignor shall promptly advise DPTS in writing of the particulars of such, claim and cooperate with DPTS in whatever investigation of such claim DPTS determines to make in trying to collect the debt. It is understood that any monies deemed uncollectible for any reason from Debtor, whether they have been paid to the assignor or not, is the full responsibility of the Assignor to repay, in its entirety, to DPTS within 30 days after written notice from DPTS to Assignor notifying Assignor that funds are uncollectible.
a. Assignor does hereby grant a security interest to DPTS all of Assignor’s present and hereafter acquired accounts, accounts receivable, inventory, general intangibles, supplies and work in progress, together with all proceeds, including insurance proceeds, thereof (collectively hereinafter called the “Collateral”), to secure the full, faithful and timely performance of all obligations and liabilities on the part of the Assignor under this Agreement. In addition, to further secure the Obligations, Assignor does hereby grant a security interest to DPTS in and to all of Assignor’s personal property, or equipment, including, without limitation, cash, in control of DPTS.
b. Upon any breach of any Obligation. DPTS may elect, either with or without notice, to succeed to protect its interest under the Arizona Uniform Commercial Code.
c. The security interests created hereby shall remain in full force and effect until the full and final performance of all Obligations secured hereby.
CHANGE OF ORGANIZATIONAL STRUCTURE; CHANGE OF ADDRESS
a. Assignor agrees to notify DPTS in writing within 10 days after any change in the organizational structure of Assignor (including, without limitation, a change from sole proprietorship to corporation, corporation to limited liability company, etc.) or any change in Assignor’s business name. Assignor agrees to notify DPTS in writing within 10 days after any change in Assignor’s address, or the addition of any new places of business.
b. Assignor agrees to execute any documents reasonably requested by DPTS to amend records to show any changes by Assignor in its organizational structure, bus name, or address.
a. This Agreement, together with all applicable Assignments, contains the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes any and all prior agreements and understandings, written or oral, with respect to it. It may not be amended, waived or modified in whole or in part, except in writing signed by the party to be charged with same. A waiver on any one occasion shall, not be deemed to constitute a waiver on any other occasion.
b. This agreement together with all applicable Assignments. And any amendments in writing shall bind and inure to the benefit of the parties hereto and there respective heirs. Personal representatives, successors and assigns.
a. Exclusive venue for any disputes between the parties hereto arising from the execution, delivery or performance of this Agreement and all Assignments shall be in the District Court in and for the City and County of Phoenix, Arizona, or the County Court in and for said city and county, depending upon the amount in controversy. In any civil action or other proceeding relating to such disputes, the prevailing party shall be entitled to its reasonable attorney’s fees and costs.
c. Each party waives its right to demand a trial by jury in any such dispute.
d. Delinquent amounts payable hereunder or under any Assignment or pursuant to any judgment or award of any court or other tribunal arising from such disputes shall bear interest at the rate of 15% per annum, from the date due until the date actually paid; provided, however, that if Assignor withholds from. DPTS any payment of Account which it receives from a Debtor or is wholly or partly responsible for causing a Debtor to deliver payment on Accounts to any party other than DPTS, in addition to whatever legal right DPTS may have to seek punitive or exemplary damages, Assignor shall be liable to DPTS the amounts wrongfully withheld or wrongfully diverted. Together with interest at the greatest of 22% per annum or the highest rate allowable under applicable law.
THE SERVICES ARE OFFERED ON AN "AS IS," "WHERE IS" AND "WHERE AVAILABLE" BASIS, WITH NO WARRANTY OF ANY KIND-WHETHER EXPRESS, IMPLIED OR STATUTORY-INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DOES NOT AFFECT THOSE WARRANTIES WHICH INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER THE LAWS APPLICABLE TO THIS AGREEMENT.
YOU ACKNOWLEDGE THAT NEITHER DP TRUCK SOLUTIONS, INC., ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, THIRD PARTY CONTENT PROVIDERS OR LICENSORS WARRANT THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THE SITE, OR AS TO THE TIMELINESS, SEQUENCE, ACCURACY, RELIABILITY, COMPLETENESS OR CONTENT OF ANY INFORMATION, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE SERVICES AND THE SITE.
EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT OR WHERE THE LAW REQUIRES A DIFFERENT STANDARD, YOU AGREE THAT DP TRUCK SOLUTIONS INC. IS NOT RESPONSIBLE FOR ANY LOSS, PROPERTY DAMAGE OR BODILY INJURY, WHETHER CAUSED BY ACCESS TO OR USE OF THE SERVICES OR THE SITE. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, DP TRUCK SOLUTIONS WILL NOT BE RESPONSIBLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, ECONOMIC OR OTHER DAMAGES ARISING IN ANY WAY OUT OF THE INSTALLATION OR USE OF THE SERVICES, THE SITE, ANY ON-LINE SERVICES OR INTERNET BROWSER SOFTWARE, INCLUDING LIABILITY ASSOCIATED WITH ANY COMPUTER VIRUSES WHICH MAY INFECT YOUR COMPUTER SYSTEM.