These Lumanu EarlyPay Program Terms and Conditions (“Agreement”) govern participants’ participation in Lumanu’s EarlyPay Program. The Lumanu EarlyPay Program is designed to permit advance payments to participants in exchange for (1) assignment and purchase of rights for participants’ accounts receivable and (2) payment of an associated fee by participants.
By agreeing to participate in Lumanu’s EarlyPay Program, you and any person or organization on behalf of whom you act (“Participant” or “you”) accept and consent to be bound by the then-current version of this Agreement; and confirm that your acceptance creates a legal agreement between you and Lumanu, Inc. (“Lumanu” or “we/us”) governing your participation in Lumanu’s EarlyPay Program;
This Agreement supplements, but does not replace, any other payment terms and conditions between Lumanu and you, except that, in the event of a conflict between other payment terms and conditions and those herein with regard to your participation in the EarlyPay Program, this Agreement shall control.
Lumanu may reach out to Participant by internet opt-in link, text and/or email (or other digital approval method accepted by the Participant) (“Opt-In Form”) to indicate that certain accounts receivable of the Participant are eligible for Lumanu’s EarlyPay Program.
Upon your acceptance of participation via the Opt-In Form (“Acceptance”) for such eligible account receivable (“Eligible Receivable”), you agree to sell and assign such Eligible Receivable to Lumanu on the terms herein. Additionally, your Acceptance shall be deemed a representation and warranty by you that the Eligible Receivable represents a valid and bona fide sale, that the goods and/or services represented by the Eligible Receivable have been completely delivered and/or completely rendered, and that, as of the date of your Acceptance, you have no notice or knowledge of any Dispute (as defined below) relating to the Eligible Receivable or of a previous or subsequent account receivable with such Account Debtor (as defined below), which could cause your Account Debtor to refuse to pay the Purchased Receivable on its due date.
For purposes of this Agreement, “Dispute” means any claims, complaint, offset, defense, counter-account or counter-claim whatever including without limitation, dispute as to price, terms, discount, quantity, quality, returns, intended returns or the rights to return, allowances, claims for credit, deliveries, warranties, nature of buyer/seller relationship, claims of release from liability, force majeure or any law or regulations; and also includes the failure or refusal by your customer to pay the full amount of the Eligible Receivable and/or Purchased Receivable, as applicable, for any reason whatsoever.
Following your Acceptance, Lumanu will conduct a review of the Eligible Receivable and approve or deny, in its sole discretion, the Eligible Receivable for purchase by and assignment to Lumanu. If prompted, you agree to provide such additional information regarding the Eligible Receivable as Lumanu may reasonably request, otherwise the Eligible Receivable may be denied and will not be subject to this Agreement. If approved, Lumanu agrees to purchase as absolute owner, with full recourse, the approved Eligible Receivable (the “Purchased Receivable”) and promptly deliver to you the Purchase Price (as described in Section 6 [Purchase Price]). Every purchase of Purchased Receivables includes all rights of an unpaid vendor, including all privileges, rights of stoppage in transit, rights of dissolution and any rights flowing from any guarantees, as applicable.
Lumanu shall have no liability to you or to any person or entity for declining approval of any accounts receivable, including Eligible Receivables, to be Purchased Receivables, and your refusal to provide additional information may cause such Eligible Receivables to be denied as Purchased Receivables but shall not otherwise be deemed an Event of Default under this Agreement.
You warrant that
you are a duly organized and validly existing corporation, LLC, partnership or a sole proprietorship (i.e. individual operator of an unincorporated business);
you are duly authorized to enter into this Agreement and to be bound, and have the entity for which you are acting to be bound, by its terms; and
you are not insolvent (as that term is defined in the United States Bankruptcy Code and the Uniform Commercial Code in the state(s) you are conducting business).
you have fully provided the applicable goods and/or services associated with the Eligible Receivable to the buyer and (as the case may be) were authorized or licensed (if a license is necessary) to provide the services, described in every Eligible Receivable; and
each and every Eligible Receivable is, and will at all times be clear of any liens, rights of third parties, or other charges.
These are ongoing warranties applicable to all transactions between you and us under this Agreement.
Lumanu shall have the right, upon purchase and assignment, to reach out to the entity responsible for payment for each Purchased Receivable (as further defined below, the “Account Debtor”) and notify them to pay all amounts previously owed to you to Lumanu.
For purposes of this Agreement, “Account Debtor” has the meaning set forth in the Uniform Commercial Code under the laws of the state(s) in which the goods and/or services represented by the Purchased Receivable have been and/or are rendered, and includes any person liable on any Purchased Receivable, including without limitation, your customers liable for (and any guarantor of) the Purchased Receivable and any issuer of a letter of credit or banker's acceptance.
It is the intention of the parties to this Agreement that payment of the Purchase Price by the Lumanu to you for Purchased Receivables shall constitute an absolute sale of such Purchased Receivables and not a loan. In the event, however, that a court of competent jurisdiction were to hold that the transaction evidenced by this Agreement constitutes a loan and not a purchase and sale, it is the intention of the parties that this Agreement shall constitute a security agreement under the UCC and any other applicable law, and that you shall be deemed to have granted to Lumanu a first priority perfected security interest in all of your right, title and interest in, to and under the Purchased Receivable and all payments of principal of or interest on such Purchased Receivable.
We will purchase each Purchased Receivable at a discount from the face value thereof based on the applicable discount rate quoted to you by Lumanu at the time immediately prior to your Acceptance (“Purchase Price”). We will pay you the Purchase Price for each Purchased Receivable upon purchase thereof by us. We may also deduct from the Purchase Price any other amounts which may be owed by you to us at such time. Any payments received by us from or on behalf of an Account Debtor more than one outstanding Purchased Receivable from the Participant may be applied by us against such Purchased Receivable owing by that customer as we consider appropriate, notwithstanding any allocation made by the customer.
You agree that you will not, without our prior written consent, accept any change to any payment terms relating to any Purchased Receivable. You will notify us immediately if a customer in any way alleges any Dispute.
You irrevocably appoint us or any person designated by us your lawful attorney-in-fact for all collection matters relating to the Purchased Receivables, and, without limiting the scope of this appointment, we have the right to endorse your name on all payment instruments, verifications of account, notices to customers, and similar documents, to send to any customer in your name or ours requests for verification or payment of accounts; to draw and/or confirm acceptance of drafts; to sue for, recover and receive all monies due, owing and payable under each Purchased Receivable; and otherwise collect such accounts in whatever manner we see fit, including the right to make compromises and settlements with your Account Debtors, to attend and vote in your name or ours at all meetings of creditors, to file proofs of claim and generally to perform any acts necessary or expedient for the purpose of collecting the Purchased Receivable. You will remit to us forthwith, and in the same form as received, all payments and evidences of payment received from your customers representing payment of Purchased Receivables, and any other communications from your customers relating to any Purchased Receivables.
From time to time as requested by Lumanu, Lumanu 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 your books and records as necessary to carry out the purposes of this Agreement and verify amounts owed, and you shall permit Lumanu or its designee to make copies of such books and records or extracts therefrom as Lumanu may request.
The occurrence or existence of any of the following events or conditions shall constitute an “Event of Default” hereunder: (a) either party is in default in the payment of any of its obligations or in the performance of any provision hereof if not cured within five (5) business days’ of receiving notice of such Event of Default; (b) any warranty or representation contained herein proves to be false in any way; (c) you or any guarantor of any of your obligations becomes subject to any debtor-relief proceedings, including by way of the commencement of any petition for relief filed by or against you or any guarantor under any chapter of the federal bankruptcy laws; or (d) you assign, sell, pledge or encumber any Purchased Receivables to any other party. Upon an Event of Default, the non-defaulting party may terminate this Agreement with notice to the defaulting party. The non-breaching party shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief, as well as money and other applicable damages available under law. Notwithstanding any other Section of this Agreement, nothing stated herein shall be construed to limit any other remedies available to the parties. Any payment obligations accrued prior to the date of termination and Repurchase obligations shall survive termination hereof, as well as any obligations which reasonably should be read to survive termination.
You promise not to access (or attempt to access) any of the Services by any means other than through the interface(s) that are provided by us. Without limiting the generality of the foregoing, you specifically promise not to access(or attempt to access) any of the Services through any automated means(including use of scripts or crawlers) other than customary indexing of content by search engines. Similarly, you promise that you will not provide any third-party access to material on the Services (or facilitate their attempt to access)by any means other than through the interface that is provided by us.
Without limiting any other rights that Lumanu, or any director, officer, employee or agent of Lumanu (each an “Indemnified Party”) may have under this Agreement or under applicable law, you hereby agree to indemnify each Indemnified Party from and against any and all claims, losses, liabilities, obligations, damages, penalties, actions, judgments, suits, and related costs and expenses of any nature whatsoever, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “Indemnified Amounts”) which may be imposed on, incurred by or asserted against an Indemnified Party in any way arising out of or relating to this Agreement or the ownership of the Purchased Receivables or in respect of any Purchased Receivable, excluding, however, Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of such Indemnified Party.
Any Indemnified Amounts subject to the indemnification provisions of this Section shall be paid to the Indemnified Party within five (5) business days following demand therefor, together with interest at the lesser of twenty percent (20%) per annum or the highest rate permitted by law from the date of demand for such Indemnified Amount.
To the maximum extent allowed by law, in no event will Lumanu be liable for any loss of profits or revenue, loss of business, loss of anticipated savings or income, loss of use, business interruption, or punitive, exemplary, direct, indirect, special, incidental or consequential damages of any kind, even if Lumanu has been advised of the possibility of such damages, in connection with or arising out of this Agreement and in no event shall be liable to the Participant in an amount in excess of amounts paid as Purchase Price(s) to Participant in the preceding six (6) month period.
This Agreement is for your benefit and will bind you, and your respective successors and assigns. We have made no representations to induce you to enter into this Agreement other than those which may appear herein. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by both parties. Neither party may assign this Agreement or, except as otherwise set forth herein, any rights hereunder, without the prior written consent of the other party. Time, whenever material, shall be of the essence.
The Agreement will continue for an indefinite period of time from the date hereof with regard to any such Purchased Receivables. Lumanu reserves the right to update this Agreement at its sole discretion and, upon such update, the updated Agreement shall apply to all new Purchased Receivables purchased after the date of the updated Agreement. Upon any update, Lumanu will promptly post and make available such updated Agreement to current and potential EarlyPay Program Participants.
Any notices required to be given or delivered to Lumanu under the terms of this Agreement will be made using the appropriate contact information indicated below or such other address or telephone number as the Party may designate, in writing, from time to time. If notice is due to the Participant, such notice may be delivered by any reasonable means using the contact information provided by you to Lumanu. All notices will be deemed to have been given or delivered upon: (i) personal delivery; (ii) two (2) business days after deposit with any return receipt express courier (prepaid); or (iii) (with regard to notice to Lumanu) immediately upon confirmation of receipt by fax or email; or (with regard to notice to Participant) immediately upon receipt by fax, email or other applicable online or text-based notification.
Attention: 1528 Webster Street
Oakland, CA 94612 Telephone: 415-702-2980
Lumanu may, at any time, without the consent of Participant, assign any of its rights and obligations hereunder or interest herein. Without limiting the generality of the foregoing, Participant acknowledges that Lumanu may assign its collateral rights hereunder for the benefit of third parties. Participant does hereby further agree to execute and deliver to Lumanu all documents and amendments presented to the Participant by Lumanu in order to effectuate such assignment.
This Agreement shall be governed by the laws of the State of Delaware. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will not invalidate the remaining provisions, nor will it invalidate or render unenforceable such provision in any other jurisdiction.
Upon reasonable request from us, you will sign such further documents and do such further acts as may be required in order to give effect to the purpose and intent of this Agreement.