Terms Of Service - Thunderfunding

BY ACCEPTING THESE TERMS AND CONDITIONS AND THE RIDERS BELOW, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, SUBMITTING A REQUEST FOR AN ADVANCE OR OTHER DOCUMENT THAT REFERENCES THESE TERMS AND CONDITIONS AND THE RIDERS, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS AND THE RIDERS, YOU: (A) HEREBY AGREE TO THE TERMS OF THESE TERMS AND CONDITIONS AND THE RIDERS ON BEHALF OF THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“SELLER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SELLER TO THESE TERMS AND CONDITIONS AND THE RIDERS. IF YOU DO NOT HAVE SUCH AUTHORITY OR IF YOU DO NOT AGREE WITH THIS RIDER, YOU MUST NOT ACCEPT THIS RIDER AND MAY NOT SELL RECEIVABLES TO PURCHASER EXCEPT AS OTHERWISE PROVIDED IN THE FACTORING SERVICES AGREEMENT.

1. Terms, Conditions and Defined Terms.

These Terms, Conditions and Defined Terms are a companion set of terms and conditions to the Factoring Services Agreement and vice versa. Any terms not otherwise defined in the Factoring Service Agreement or these terms shall have the meanings given by the Uniform Commercial Code and Title 49 of the United States Code (e.g., 49 U.S.C. § 13102). PLEASE NOTE THAT THERE ARE 2 RIDERS BELOW: ONE APPLIES OF YOU ARE A SELLER DEEMED LOCATED IN THE STATE OF CALIFORNIA AND THE OTHER IS FOR USE IF YOU ELECT TO USE OUR PRE-DELIVERY LOAD FUEL ADVANCES. PLEASE READ EACH CAREFULLY.

1.1 Account – All “Accounts” as defined in the Uniform Commercial Code and all goods represented therefrom.

1.2 Account Debtor – The person or entity obligated to pay an account, including but not limited to, general intangibles and chattel paper.

1.3 Advance Rate – A percentage equal to the Advance Rate reflected in the Factoring Services Agreement.

1.4 Agreement Term – The length of time as indicated on the Factoring Services Agreement under the label Agreement Term. The Agreement will automatically renew for a subsequent term provided that Cancellation under Section 11.2 has not occurred.

1.5 BOI report – a beneficial ownership information report that discloses all information that is required to be filed with the Financial Crimes Enforcement Network (FinCEN) pursuant to the Corporate Transparency Act including any information that is required due to any change in the Seller or its beneficial owners, such as registering a new business name, a change in the beneficial owner’s name or address.

1.6 Cancellation – The Agreement may be cancelled pursuant to the terms set forth herein, provided that all Obligations have been met.

1.7 Choice of Law – See Section 16.1

1.8 Clearance Days – Two (2) business days on all checks and electronic funds transfers, for all purposes of this Agreement, Clearance Days will be added to the date on which any payment is received by Purchaser.

1.9 Closed – a Purchased Account for which payment in full has been received from Account Debtor or the advanced amount on the invoice, including fees has been charged to the Reserve Account pursuant to this Agreement.

1.10 Collateral – All now-existing and hereafter arising Accounts, Equipment, Inventory, Deposit Accounts, Chattel Paper, Electronic Chattel Paper, Letters of Credit, Letter of Credit Rights, Investment Property, Instruments, General Intangibles (including Payment Intangibles), Commercial Tort Claims, Supporting Obligations and all monies held in the Reserve Account, all books, records, files and computer data relating to the foregoing including all Invoice Documentation and all products, profits and proceeds of the foregoing, currently owned or acquired hereafter by Seller or Guarantor and all of Seller’s statutory and common law rights as a Motor Carrier in respect to any Freight Broker, Consignor/shipper and/or Consignee/recipient under any Bill of Lading or otherwise.

1.11 Daily Simple SOFR – the secured overnight financing rate published on such date published by the Federal Reserve Bank of New York on the Federal Reserve Bank of New York’s website at approximately 8:00 a.m. Eastern Time for the previous business day or, at Purchaser’s Business Judgment, as published by the Wall Street Journal. Purchasers may adjust the Factoring Fee to reflect changes in Daily Simple SOFR.

1.12 Data – Includes all forms of information that is contained in or related to the Invoice Documentation supplied to Purchaser.

1.13 Digital Wallet — also known as e-wallet, is an electronic device, online service, or software program that allows one party to make electronic transactions with another party bartering digital currency units for goods and services. This can include purchasing items on-line with a computer or using a smartphone to purchase something at a store including any money deposited in a digital wallet prior to any transactions or, in other cases, a bank account that is linked to the digital wallet.

1.14 Dilution – The percentage of chargeback debits divided by the total payments received for any specific period selected.

1.15 Dispute – Any dispute or claim, bona fide or not, as to the price, terms, amount, quantity, quality, setoff, claims in recoupment or other defense to payment asserted by an Account Debtor.

1.16 Eligible Account – An Account which is acceptable for purchase in Purchaser’s Business Judgment.

1.17 Events of Default – As set forth in Section 5 herein.

1.18 Exposed Payments – Payments received by Purchaser from an Account Debtor which has become subject to a bankruptcy proceeding, to the extent such payments cleared said Account Debtor’s deposit account within ninety days prior to the commencement of said bankruptcy case.

1.19 Face Value – The amount presented as being due on an Account at the time of Purchase.

1.20 Factoring Fee – As specified in the Factoring Services Agreement, a fee equal to the Face Value of a Purchased Account multiplied by the Factoring Fee for each Factoring Fee Period or portion thereof, computed from Purchase Date through and including the Late Payment Date.

1.21 Factoring Fee Period(s) – As specified in the Factoring Services Agreement, the period in which the corresponding Factoring Fee will be applied to such Eligible Account(s) after payment has been received by Purchaser and after said Clearance Days have passed.

1.22 Funded Amount – The face value of an Account multiplied by the Advanced Rate, less any amounts due to Purchaser from Seller.

1.23 Insolvent – An Account Debtor has become Insolvent if it is the subject of (i) a petition under any state or federal debtor relief or liquidation statute filed within the Insolvency Period, (ii) a proceeding under Chapters 11, 7 or 13 of the Bankruptcy Code filed on or after the Purchase Date and within the Insolvency Period, or (iii) the Financial Inability of an Account Debtor.

1.24 Insolvency Period – The earlier of (i) the Late Payment Date or (ii) the date on which the Seller could be required to repurchase an Account under Section 2.5 herein entitled “Repurchase of Accounts.”

1.25 Invoice Documentation – all forms, information and documentation as required by Purchaser in Purchaser’s Business Judgment that supports the legitimacy and expected payments of an Invoice. The Invoice Documentation may include a signed, legible bill of lading, an itemized freight bill or invoice, a rate confirmation sheet, any broker or carrier agreement, and all other Invoice Documentation required by Purchaser to enable Purchaser to determine the validity of an Account and the likelihood that full payment will be made without any Account Dispute. The freight bill or Invoice may be required to be itemized setting out, at a minimum, the billed to and shipped to parties, the rate and all advance payments, allowances, deductions, discounts, credits, setoffs, and other amounts and matters necessary to enable Purchaser to accurately determine the amount of a Purchase Price of an Account receivable under this Agreement.

1.26 Invoice Processing Fee – a fee for the processing of all Invoice Documentation,

1.27 Late Charge – 0.10% of the Face Value of an Account, for each day computed from the first day after the Late Payment Date, provided however that any Late Charge with respect to any Reserve Shortfall shall be computed from the date such Reserve Shortfall occurred.

1.28 Late Payment Date – The final day in which an invoice is considered not-late as represented on the Factoring Services Agreement. Invoices which are not paid after the Late Payment Date become subject to a Late Charge.

1.29 Misdirected Payment Fee – fifteen percent (15%) of the original face value of a purchased account, or, $1,000.00, whichever is greater, for which payment has been received by Seller and not delivered in kind to the Purchaser on the next business day following the receipt by Seller.

1.30 Missing Notation Fee – Fifteen percent (15%), or, $1,000.00, whichever is greater of the face value of Account.

1.31 Non-Recourse Account – A Purchased Account that is a Non-Recourse Account and non-payment is due exclusively due to the Account Debtor becoming Insolvent within the Insolvency Period.

1.32 Obligation – all present and future obligations owing by Seller to Purchaser whether or not for the payment of money, whether or not evidenced by any note, invoice or other instrument, whether direct or indirect, absolute or contingent, due or to become due, joint or several, primary or secondary, liquidated or unliquidated, secured or unsecured, original or renewed or extended, whether arising before, during or after the commencement of any bankruptcy case in which Seller is a debtor, including but not limited to any obligations arising pursuant to letters of credit or acceptance transactions or any other financial accommodations.

1.33 Parties – Seller and Purchaser

1.34 Prime Rate – the “prime rate” as set forth in The Wall Street Journal. Purchasers may adjust the Factoring Fee to reflect changes in the Prime Rate.

1.35 Purchase Date – the date on which Seller has been advised in writing, or by update to Purchaser maintained website or software application offered by Purchaser, that Purchaser has agreed to purchase an Account.

1.36 Purchased Accounts – Accounts that have been purchased pursuant to this Agreement which have not been Closed.

1.37 Purchaser’s Business Judgment – in connection with decisions made by Purchaser, means the exercise of such decisions in Purchaser’s sole and exclusive business judgment and discretion.

1.38 Recourse Accounts – See Section 2.1.3

1.39 Repurchased Accounts – See Section 2.5.

1.40 Required Reserve Percentage – a percentage equal to the difference between one hundred percent (100%) of the Face Amount and the Advance Rate Percentage which percentage may be adjusted, from time to time, in Purchaser’s Business Judgment.

1.41 Reserve Account – a ledger entry, non-Deposit Account maintained by Purchaser in connection with all Accounts sold to Purchaser by Seller under this Agreement reflecting an amount that is expected to equal the Required Reserve Percentage as established pursuant to this Agreement in order to secure Seller’s performance and all Obligations and non-monetary Obligations under this Agreement.

1.42 Reserve Percentage – An amount calculated by subtracting the Advance Rate from 100%, subject to adjustments by Purchaser in Purchaser’s Business Judgment, from time to time, to the extent that Purchaser determines that circumstances justify such adjustments.

1.43 Reserve Shortfall – The Amount by which the Reserve Account is less than the Required Reserve Percentage.

1.44 Sales-based Financing – means any form of commercial financing transaction that is repaid by a person who enters into an agreement with a financer as a percentage of sales or income, in which the payment amount increases and decreases according to the volume of sales made or income received by the recipient. Sales-based financing also includes commercial financing transactions with a true-up mechanism.

1.45 SOFR (the secured overnight financing rate) published on such date by the Federal Reserve Bank of New York on the Federal Reserve Bank of New York’s website at approximately 8:00 a.m. ET for the previous business day or, at Purchaser’s election, as published by the Wall Street Journal. Each change in the SOFR shall become effective without notice to Seller on the effective date of each such change.

1.46 Special Accommodation – the financial accommodations provided for a fee to Seller in Purchaser’s Business Judgement as set forth on the Factoring Services Agreement, or in addendum thereto.

1.47 Term – As set forth in Section 11 herein.

1.48 Unnoted Advance Fee – ten percent (10%) or one-hundred dollars ($100), whichever is greater, of the original face value of any Account which has been sold to Purchaser by Seller whereby any monies have been advanced to Seller against the Account and have not otherwise been disclosed to Purchaser in writing prior to Purchase of said Account.

2. Factoring

2.1 Sale and Assignment

2.1.1 Seller agrees to sell Accounts to Purchaser as Seller’s sole factor. Purchaser shall be under no obligation to purchase Seller’s Accounts and shall only purchase Eligible Accounts.

2.1.2 Purchaser may, but need not, purchase from Seller such Accounts as Purchaser determines to be Eligible Accounts, so long as the unpaid balance of Purchased Accounts does not exceed, before and after such purchase, the Purchase Facility Amount as specified on the Factoring Services Agreement. Purchaser may, in Purchaser’s Business Judgment exercised in good faith, either increase or decrease the Purchase Facility Amount. To the extent Purchaser’s purchase of any Purchased Account shall cause the total outstanding Face Amount of the Purchased Accounts to exceed the Purchase Facility Amount, the then existing Purchase Facility Amount shall, as of the date of such purchase, be immediately increased to the resulting total Face Value of all Purchased Accounts.

2.1.3 Unless Purchaser advises Seller in writing that an Account is purchased as a Recourse Account, each Purchased Account shall be deemed purchased from Seller as a Non-Recourse Account.

2.1.4 The Parties agree that upon the execution of this Agreement, and Purchaser’s initial payment of a Funded Amount to acquire a Purchased Account, Seller shall have transferred to Purchaser a non-exclusive, irrevocable, transferable, sublicensable right and license to use all of the Data supplied by Seller to Purchaser including all Data contained in the Invoice Documentation which Purchaser may use for any purpose and throughout the United States and any foreign country as Purchaser may, in Purchaser’s Business Judgment, desire. The rights granted to Purchaser under this section shall survive any form of termination of this Agreement and nothing contained in this Agreement may serve to adversely affect or impair Seller’s right to the use of the Data.

2.2 Reserve

2.2.1 Seller shall pay to Purchaser on demand the amount of any Reserve Shortfall.

2.2.2 So long as there is no Event of Default or pending Dispute that may result in an offset of monies due to Purchaser, Purchaser, upon request of Seller, shall pay to Seller not to exceed bi-monthly, the Reserve Account balance provided that by doing so Purchaser is not at risk in the event of such Dispute.

2.2.3 Purchaser may charge the Reserve Account with any Obligation, including any amounts due from Seller to Purchase hereunder.

2.2.4. Purchaser may pay any amounts due Seller hereunder by a credit to the Reserve Account.

2.2.5. Upon Cancellation of this Agreement, Purchaser may retain the Reserve Account for ninety (90) days thereafter to be applied to payment of any Obligations unknown to Purchaser at the time of Cancellation, and/or unless and until Seller has executed and delivered to Purchaser a General Release of Liability.

2.3 Fees and Expenses. Seller shall pay to Purchaser the:

2.3.1 Factoring Fee on all Accounts purchased by Purchaser.

2.3.1 Invoice Processing Fee. $0.99 for each invoice submitted for purchase outside of the Thunder Mobile App or desktop portal.

2.3.2 Misdirected Payment Fee. Immediately upon an event of a Misdirected Payment.

2.3.3 Missing Notation Fee. On any Account that is sent by Seller to an Account Debtor which does not contain the notice as required by Section 6.3.

2.3.4 Late Charge. On demand on all past due amounts due to Purchaser from Seller hereunder and the amount of any Reserve Shortfall.

2.4 Account Disputes

2.4.1 Disputes. Seller shall notify Purchaser promptly of and, if requested by Purchaser, will settle all disputes concerning any Purchased Account, at Seller’s sole cost and expense. Purchaser may, but is not required to, attempt to settle, compromise, or litigate (collectively, “Resolve”) the dispute upon such terms, as Purchaser in its sole discretion deem advisable, for Seller’s account and risk and at Seller’s sole expense. Upon the occurrence of an Event of Default Purchaser may resolve such issues with respect to any Account of Seller.

2.5 Repurchase of Accounts. Purchaser may require that Seller repurchase, by payment of the then unpaid Face Amount thereof together with any unpaid fees relating to the Purchased Account on demand:

2.5.1 any Purchased Account;

2.5.2 the payment of which has been disputed by the Account Debtor obligated thereon, Purchaser being under no obligation to determine the bona fides of such dispute;

2.5.3 for which Seller has breached any representation or warranty as set forth in the Sections 8 or 9;

2.5.4 any Account purchased which remains unpaid beyond the Late Payment Date unless purchased as a Non-Recourse Account, and,

2.5.5 upon the occurrence of an Event of Default or upon the Cancellation date of this Agreement, all unpaid Accounts.

2.6 Exposed Payments.

2.6.1 Upon termination of this Agreement Seller shall pay to Purchaser (or Purchaser may retain), to hold in a non- segregated non-interest-bearing account the amount of all Exposed Payments (the “Preference Reserve”.)

2.6.2 Purchaser may charge the Preference Reserve with the amount of any Exposed Payments which Purchaser pays to the bankruptcy estate of the Account Debtor which made the Exposed Payment, on account of a claim asserted under Section 547 of the Bankruptcy Code.

2.6.3 Purchaser shall refund to Seller from time to time that balance of the Preference Reserve for which a claim under Section 547 of the Bankruptcy Code can no longer be asserted due to the passage of the statute of limitations, settlement with the bankruptcy estate of the Account Debtor or otherwise.

2.6.4 Purchaser may retain the Reserve Account unless and until Seller has executed and delivered to Purchaser a general release.

3. Account Stated. Purchaser may provide Seller, electronically through a website or otherwise, in respect to the Purchased Accounts, with reports in connection with the factoring relationship relating to billing, collection, and maintenance of the relationship such as aging, posting, error resolution and mailing of statements or make such information available. All of the foregoing shall be in a format and in such detail, as Purchaser, in its Purchaser’s Business Judgment, deems appropriate. Purchaser’s books and records and electronically stored information shall be admissible in evidence without objection as to authenticity, hearsay or otherwise and shall be admissible as prima facie evidence of, among other things, the status of the Purchased Accounts, non-Purchased Accounts and Reserve Account between Purchaser and Seller. Each statement, report, or accounting rendered or issued by Purchaser to Seller and all electronically stored information made available or accessible to Seller through a website shall be deemed conclusively accurate and binding on Seller unless within fifteen (15) days after the date of issuance or, in the case of electronically stored information, the first of each month, Seller notifies Purchaser to the contrary by registered or certified mail, setting forth with specificity the reasons why Seller believes such statement, report, or accounting or electronically stored information is inaccurate, as well as what Seller believes to be correct. Seller’s failure to receive any statement or for whatever reason Seller’s inability to access any website that makes any electronically stored information available for review shall not relieve Seller of the responsibility to request such information and Seller’s failure to do so shall nonetheless bind Seller to whatever Purchaser’s records or electronically stored information report.

4. Authorization to Purchaser

4.1 Seller hereby irrevocably authorizes Purchaser at Seller’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 Purchaser or Seller, any and all cash, checks, commercial paper, drafts, remittances and other instruments and documents relating to the Collateral or the proceeds thereof, (b) take or bring, in the name of Purchaser or Seller, all steps, actions, suits or proceedings deemed by Purchaser necessary or desirable to effect collection of or other realization upon the accounts and other Collateral, (c) after an Event of Default, change the address for delivery of mail to Seller and to receive and open mail addressed to Seller and to the extent mail appears to be unrelated to Purchaser’s interests, make such mail available to Seller for pick-up or otherwise transfer such mail to Seller which duty to transfer such mail shall commence thirty (30) days after Purchaser first receives physical possession of Seller’s mail; (d) 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 or other Collateral which includes a monetary obligation and discharge or release any Account Debtor or other obligor (including filing of any public record releasing any lien granted to Seller by such Account Debtor), without affecting any of the Obligations, (e) pay any sums necessary to discharge any lien or encumbrance which is senior to Purchaser’s security interest in the Collateral, which sums shall be included as Obligations hereunder, and in connection with which sums the Late Charge shall accrue and shall be due and payable, (f) file in the name of Seller or Purchaser or both, (1) mechanics lien or related notices or (2) claims under any payment bond, in connection with goods or services sold by Seller in connection with the improvement of realty, (g) notify any Account Debtor obligated with respect to any Account, that any and all Accounts have been assigned to Purchaser by Seller and that payment thereof is to be made to the order of and directly and solely to Purchaser, and (h) communicate directly with Seller’s Account Debtors to verify the amount and validity of any Account created by Seller, (i) do any and all things necessary to carry out the purpose of the Agreement and to protect Seller’s and Purchaser’s interest in the Collateral, and (j) from time-to-time Purchaser may come into possession of untraceable funds on behalf of Seller and in connection therewith Seller may request that Purchaser release such funds by providing written notice to Purchaser; however, notwithstanding anything in this Agreement to the contrary, to the extent Seller does not make a bona fide claim to such funds pursuant to the terms of this Agreement, without any notice to Seller and whether any third-parties are making any claims to such funds, and whether or not the Term of this Agreement have expired, as a result of the costs associated with the required monitoring of such funds, commencing on the date Purchaser receives such funds, Purchaser shall be entitled to a monthly administrative fee equal to 8.33% of such funds. Purchaser shall have the right to offset the fee against such funds held by Purchaser. The exercise of any of the foregoing powers shall be in Purchaser’s Business Judgment.

4.2 Security Interest; Ownership Interest and Acknowledgements of Relationship of Parties.

4.2.1 As to all Collateral securing the Obligations, Seller hereby grants to Purchaser a continuing first priority Security Interest in and to all such Collateral.

4.2.2 Seller confirms and acknowledges that it does business as a commercial enterprise and that this Agreement is intended to be an “account purchase transaction,” as defined by Texas Finance Code §306.001(1); accordingly, pursuant to that Texas Finance Code 306.103 the parties agree that this provision conclusively establishes that no amount charged under this Agreement shall constitute interest.

4.2.3 Seller confirms and acknowledges that this Agreement is intended to serve as a true sale of the Purchased Accounts agreement as is expressly permitted by Tex. Bus. & Com. Code Ann. § 9.109 (e). The Parties’ characterization of this transaction as a true sale of the Purchased Accounts shall be conclusive that the transaction is a sale and is not a secured transaction and that title, legal and equitable, has passed to Purchaser regardless of the fact that Purchaser has recourse against Seller or any other term of the parties’ agreement.

4.3 The Seller authorizes the Purchaser at any time and from time to time to file any initial financing statements and amendments thereto that:

4.3.1. Indicate the Collateral as “all assets of the Seller” or words of similar effect, regardless of whether any particular asset comprised in the Collateral falls within the scope of Article 9 of the UCC, or as being of an equal or lesser scope or with greater detail;

4.3.2. 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 (i) whether the Seller is an organization, the type of organization, and any organization identification number issued to the Seller and, (ii) in the case of a financing statement filed as a fixture filing or indicating Collateral as as-extracted collateral, or a sufficient description of real property to which the Collateral relates; and

4.3.3 contain a notification that the Seller has granted a negative pledge to the Purchaser, and that any subsequent lien or may be tortuously interfering with Purchaser’s rights.

4.4 In recognition of the Purchaser’s right to have its attorneys’ fees and other expenses incurred in connection with this Agreement secured by the Collateral, notwithstanding payment in full of all Obligations by Seller, Purchaser shall not be required to record any Cancellations or terminate the effectiveness of its initial Financing Statement unless and until Seller has executed and delivered to Purchaser a general release (a “Complete Termination”). Seller understands that this provision constitutes a waiver of its rights under §9-513 of the UCC.

4.5 Seller hereby releases and exculpates Purchaser, its officers, employees, and designees, from any liability arising from any acts under this Agreement or in furtherance thereof whether of omission or commission, and whether based upon any error of judgment or mistake of law or fact, except for willful misconduct. In no event will Purchaser have any liability to Seller for lost profits or other special or consequential damages. Without limiting the generality of the foregoing, Seller releases Purchaser from any claims which Seller may now or hereafter have arising out of Purchaser’s endorsement and deposit of checks issued by Seller’s customers stating that they were in full payment of an account, but issued for less than the full amount which may have been owed on the account.

4.6 Seller authorizes Purchaser to accept, endorse and deposit on behalf of Seller any checks tendered by an account debtor “in full payment” of its obligation to Seller. Seller shall not assert against Purchaser any claim arising therefrom, irrespective of whether such action by Purchaser effects an accord and satisfaction of Seller’s claims, under §3-311 of the Uniform Commercial Code, or otherwise.

4.7 Purchaser is authorized to purchase Accounts upon telephonic, facsimile, or other instructions received from anyone purporting to be an officer, employee or representative of Seller.

4.8 Billing. Purchaser, in Purchaser’s Business Judgment, may send a statement to all Account Debtors itemizing their account activity during the preceding billing period. All Accounts Debtors will be instructed to make payments to Purchaser.

4.9 Depository Authorizations. In order to satisfy any of the Obligations and to correct any errors, Purchaser is hereby authorized by Seller to: (a) initiate electronic debit or credit entries through the use of any form of Digital Wallet or the ACH system to any deposit account maintained by Seller wherever located, (b) to debit and credit any third-party fuel account, including but not limited to EFS, maintained by Seller wherever located and (c) Seller acknowledges that Money Codes issued by Purchaser are valid for a period of three (3) months at which point they expire and any remaining balance shall be forfeited without further notice to seller.

4.10 Seller hereby authorizes Purchaser to obtain any and all credit reports through a credit reporting company chosen by Purchaser. Seller understands that this credit report will be retained on file with Purchaser and that the information will not be disclosed to anyone without Seller’s prior written consent.

4.11 Offset. Purchaser shall have the right to offset, recoup, and apply all funds it may receive, including from the reserve account, to satisfy the Obligations owed to it under any Agreement(s) it may have with Seller.

4.12 Data. Commencing upon the execution of this Agreement, Purchaser shall be deemed to have received a non-exclusive, irrevocable, sublicensable right and license to use all Data supplied by Seller to Purchaser which Purchaser, in Purchaser’s Business Judgement, may be used for any purpose throughout the United States. The rights granted in this section are not intended to terminate and shall survive upon the termination of this Agreement. Purchaser shall be entitled to have unfettered access to Seller’s Data and any information and all transaction activities in connection with any accounts maintained by any banking, financial and/or other form of entity that authorizes Seller to maintain any form of a Digital Wallet.

5. Default

5.1 Events of Default. The following events will constitute an Event of Default hereunder: (a) Seller defaults in the payment of any Obligation or in the performance of any provision hereof or of any other agreement now or hereafter entered into with Purchaser, or any warranty or representation contained herein proves to be false in any way, howsoever minor, (b) Seller or any guarantor of the Obligation becomes subject to any debtor-relief proceedings, (c) any such guarantor fails to perform or observe any of such Guarantor’s obligations to Purchaser or shall notify Purchaser of its intention to rescind, modify, terminate or revoke any guaranty of the Obligations, or any such guaranty shall cease to be in full force and effect for any reason whatever, (d) Purchaser for any reason, in good faith, deems itself insecure with respect to the prospect of repayment or performance of the Obligations, (e) Seller enters into any agreement with another factor or (f) Seller enters into any other agreement which puts the security interest granted to Purchaser or Purchaser’s ownership interest in the Purchased Accounts at risk, including Seller’s entering into any form of agreement with a third-party to obtain any form of financing or working capital (“Funding”) from any individual or Registered Organization that provides Sales-based financing (not intending to limit the scope of this section but commonly referred to as merchant cash advance entities) unless the Seller first obtains the Purchaser’s express written consent which consent may be withheld, delayed or conditioned in Purchaser’s Business Judgment, or, (g) Seller fails to timely comply with the Corporate Transparency Act and any applicable regulations including the preparation and filing of all required original disclosures as well as any updates or corrections necessary by the filing of an updated BOI report (currently done electronically through a secure filing system available via FinCEN’s BOI E-Filing website (https://boiefiling.fincen.gov).

5.2. Waiver of Notice. SELLER WAIVES ANY REQUIREMENT THAT PURCHASER INFORM SELLER BY AFFIRMATIVE ACT OR OTHERWISE OF ANY ACCELERATION OF SELLER’S OBLIGATIONS HEREUNDER. FURTHER, PURCHASER’S FAILURE TO CHARGE OR ACCRUE INTEREST OR FEES AT ANY “DEFAULT” OR “PAST DUE” RATE SHALL NOT BE DEEMED A WAIVER BY PURCHASER OF ITS CLAIM THERETO.

5.3. Effect of Default. Upon the occurrence of any Event of Default by Seller, in addition to any rights Purchaser has under this Agreement or applicable law;

5.3.1 Purchaser may immediately terminate this Agreement; at which time all Obligations shall immediately become due and payable without notice.

5.3.2 The Late Charge shall accrue and is payable on demand on any Obligation not paid when due.

5.3.3 Purchaser may in Purchaser’s Business Judgment, deny Seller access to any remotely accessed reporting or credit system (including any online or telephone systems) that may be maintained by Purchaser.

5.3.4 Upon any waiver by Purchaser or any Event of Default hereunder, Seller shall pay to Purchaser upon an Event of Default a waiver fee equal to one percent (1%) of the then existing Purchase Facility Amount. Any failure by Purchaser to assess such default waiver fee immediately upon the occurrence of an Event of Default shall not be deemed a waiver by Purchaser to charge such fee. Nothing provided herein shall in any way obligate Purchaser to waive any Event of Default.

5.3.5 Purchaser may seek equitable relief, including, but not limited to, injunctive or receivership remedies and Seller waives any requirement that Purchaser post or otherwise obtain or procure any bond, whether otherwise required under state or federal common or statutory law or rules of court. Alternatively, in the event Purchaser, in Purchaser’s Business Judgment, desires to procure and post a bond, Purchaser may procure and file with the court a bond in an amount up to and not greater than $10,000.00 notwithstanding any common or statutory law requirement to the contrary and upon Purchaser’s posting of such bond it shall be entitled to all benefits as if such bond was posted in compliance with law. Seller waives any right it may be entitled to, including an award of attorney’s fees or costs, in the event any equitable relief sought by and awarded to Purchaser is thereafter, for whatever reason(s), vacated, dissolved, or reversed.

5.3.6 All of Seller’s rights of access that may be made available to Seller to any online internet services that Purchaser may make available to Seller shall be provisional pending any curing of such Events of Default. During such period of time, Purchaser may limit or terminate Seller’s access to Purchaser’s online services. Seller acknowledges that the information Purchaser makes available to Seller constitutes and satisfies any duty to respond to a Request for an Accounting or Request regarding a Statement of Account that is referenced in § 9-210 of the UCC.

5.3.7 The Parties acknowledge that Purchaser shall have no duty to undertake to collect any Account or Purchased Account including those in which Purchaser receives information from any Account Debtor that a Dispute exists. In the event Purchaser undertakes to collect from or enforce an obligation of any Account Debtor and ascertains that the possibility of collection is outweighed by the likely costs and expenses that will be incurred, Purchaser may at any such time cease any further collection efforts and such action shall be considered commercially reasonable. Before Seller may, under any circumstances, seek to hold Purchaser responsible for taking any action perceived to be commercially unreasonable, Seller shall be required to first notify Purchaser, in writing, of all reasons why Seller believes Purchaser has acted in any commercially unreasonable manner and advise Purchaser of the action that Seller believes Purchaser should take.

6. Covenants By Seller.

6.1. After written notice by Purchaser to Seller, and automatically, without notice, after an Event of Default, Seller shall not, without the prior written consent of Purchaser in each instance, (a) grant any extension of time for payment of any of the Accounts, (b) compromise or settle any of the Accounts for less than the full amount thereof, (c) release in whole or in part any Account Debtor, or (d) grant any credits, discounts, allowances, deductions, return authorizations or the like with respect to any of the Accounts. The Seller authorizes the Purchaser at any time and from time to time to file any initial financing statements and amendments thereto.

6.2. From time to time as requested by Purchaser, at the sole expense of Seller, Purchaser 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 Collateral is located for the purposes of inspecting (and removing, if after the occurrence of an Event of Default) any of the Collateral, including Seller’s books and records, and Seller shall permit Purchaser or its designee to make copies of such books and records or extracts therefrom as Purchaser may request. Without expense to Purchaser, Purchaser may use any of Seller’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 Purchaser, in its sole discretion, deems appropriate. Seller hereby irrevocably authorizes all accountants and third parties to disclose and deliver to Purchaser at Seller’s expense all financial information, books and records, work papers, management reports and other information in their possession relating to Seller.

6.3 Before sending any Account to an Account Debtor, Seller shall mark same with a notice of assignment and redirection of payment in a form and content as may be required by Purchaser.

6.4 Seller shall pay when due all payroll and other taxes and shall provide proof thereof to Purchaser in such form as Purchaser shall reasonably require.

6.5 Seller shall not create, incur, assume, or permit to exist any lien upon or with respect to any Collateral now owned or hereafter acquired by Seller, nor may Seller grant any ownership interest in any of Seller’s Accounts to any party other than Purchaser unless or until all Obligations are fully satisfied and Seller has fully complied with Section 4.4.

6.6 Seller shall maintain insurance on all insurable property owned or leased by Seller in the manner, to the extent and against at least such risks (in any event, including but not limited to fire and business interruption insurance) as usually maintained by owners of similar businesses and properties in similar geographic areas. All such insurance shall be in amounts and form and with insurance companies acceptable to Purchaser in its sole discretion. Seller shall furnish to Purchaser: (a) upon written request, any and all information concerning such insurance carried; (b) as requested by Purchaser, lender loss payable endorsements (or their equivalent) in favor of Purchaser. All policies of insurance shall provide for not less than thirty (30) day’s prior written cancellation notice to Purchaser.

6.7 Notwithstanding that Seller has agreed to pay the Misdirected Payment Fee, Seller shall deliver in kind to Purchaser on the next banking day following the date of receipt by Seller of the amount of any payment on account of a Purchased Account.

7. Avoidance Claims

7.1 Seller shall indemnify Purchaser from any loss arising out of the assertion of any Avoidance Claim other than such claims that relate to Purchased Accounts that are owed by an Account Debtor which was Insolvent and shall pay to Purchaser on demand the amount thereof.

7.2 Seller shall notify Purchaser within two business days of it becoming aware of the assertion of an Avoidance Claim.

7.3 This provision shall survive Cancellation of this Agreement.

8. General Representation and Warranties. Seller represents and warrants that:

8.1 It is fully authorized to enter into this Agreement and to perform hereunder;

8.2 This Agreement constitutes its legal, valid, and binding obligation; and

8.3 Seller is solvent and in good standing in the State of its organization.

8.4 The Purchased Accounts are and will at all relevant times until a Complete Termination occurs remain:

8.4.1. bona fide existing obligations created by the sale and delivery of goods or the rendition of services in the ordinary course of Seller’s business;

8.4.2. unconditionally owed and will be paid to Purchaser without defenses, disputes, offsets, counterclaims, or rights of return or cancellation;

8.4.3. not sales to any entity which is affiliated with Seller or in any way not an “arm’s length” transaction;

8.4.4 accurately represented by the Invoice Documentation.

8.5 Seller has not received notice of actual or imminent bankruptcy, insolvency, or material impairment of the financial condition of any applicable Account Debtor regarding Purchased Accounts.

9. Surface Freight Transportation Representation and Warranties. In respect to any Accounts sold to Purchaser arising out of the transportation of freight by Seller as a Motor Carrier, Seller represents and warrants that:

9.1 Seller has duly filed with the Federal Motor Carrier Safety Administration all required applications in order to become authorized to operate as a Motor Carrier and has obtained a United States D.O.T. number.

9.2 To the extent that Seller performs any of the functions of a transportation Freight Forwarder it has filed a Form OP-1(FF) with the Federal Motor Carrier Safety Administration in order to obtain authority to operate as a transportation Freight Forwarder except that Seller may file form OP-1 if for the exclusive purpose of obtaining authority to operate as a for-hire carrier.

9.3 If Seller has entered into a contract with a Shipper to provide specified services under specified rates and conditions, Seller has done so only in writing and has supplied Purchaser with a true copy of each such contract.

9.4 Seller fully complies with each state regulatory agency through which Seller operates with respect to registration, fuel tax, and any other applicable state regulations and procedures.

9.5 Seller has duly filed evidence of property damage and personal injury or death insurance with the Federal Motor Carrier Safety Administration in amounts required by applicable federal regulation based on the gross vehicle weight rating or such higher amounts as are required for the transportation of hazardous substances, explosives, poisons, and radioactive materials.

9.6 Seller has obtained an MSC-90 endorsement to accompany its public liability insurance.

9.7 Seller has provided cargo insurance as well as the form BMC-32 Endorsement in amounts not less than as required by federal law. Seller has not applied for nor obtained authority from the Federal Motor Carrier Safety Administration to be self-insured unless Seller advises Purchaser, in writing, to the contrary, and if so, Seller has filed Forms BMC-82 and BMC-83 bonds for public liability and cargo liability.

9.8 Seller has neither received within the preceding twelve (12) months any unsatisfactory rating from the Federal Motor Carrier Safety Administration, nor has Seller been assessed any penalties under the Uniform Financial Assessment system. Seller has not been ordered to pay any civil penalties imposed by the Federal Motor Carrier Safety Administration within the preceding twelve (12) months.

9.9 Seller does not authorize its drivers to drive in excess of any state or federal safety regulation, and each driver engaged by Seller is required to duly record duty status for each twenty-four (24) hour period and Seller has implemented automatic on-board recording.

9.10 Seller has duly designated an agent for service of process in each state through which it operates and has duly filed Form BMC-3.

9.11 Seller fully complies with the Trucking Industry Regulatory Reform Act of 1994 including the publishing of its tariff in its office and the furnishing of a copy of its tariff to each Shipper upon the Shipper’s request.

9.12 Seller fully complies with the “truth in billing” regulations applicable to the requisite disclosure to payers of freight bills or to actual rates, charges, or allowances applicable to each shipment.

9.13 Seller is not and has not been accused, within the preceding six (6) months, by any Shipper, that Seller has committed an overcharge.

9.14 If Seller seeks to limit its liability for loss, damage, or delay of goods subject to Accounts offered for sale to Purchaser, Seller fully complies with the “Carmack Amendment” as described in 49 U.S.C. § 14706 and that Seller obtains Shipper’s express written waiver/consent to a limited liability or furnishes Shipper with a copy of its rates, rules, classification, and practices.

9.15 Seller satisfies each of the following duties and responsibilities with respect to each shipment: (1) Seller duly inspects all cargo loaded by a Shipper; (2) Seller inspects each load to insure that it is properly secured and is further inspected before and during movement to insure cargo has not shifted every three (3) hours 150 miles, whichever occurs first, unless the vehicle is sealed; (3) For shipments that weigh 110 pounds or less, Seller duly performs loading and unloading and charges for such services as provided in the contract or Seller’s tariffs; and (4) Seller will reasonably dispatch all goods for transportation and not unreasonably delay.

9.16 Seller has fully complied with all federal “Truth in Leasing” regulations and if applicable, Seller has furnished Purchaser with a copy of each written lease in effect during the term of the Factoring Agreement.

9.17 Each Account offered for sale represents freight charges that shall, unless otherwise agreed to by Purchaser, obligate both the Shipper and Consignee to pay the Seller for performing transportation services. Seller shall not submit any Account to Purchaser for purchase that represents an agreement whereby the Shipper has executed the non-recourse section of any Bill of Lading (i.e., Section 7 of the Uniform Straight Bill of Lading Terms and Conditions) unless expressly disclosed to Purchaser in writing within the. Invoice Documentation Seller has taken no action that would enable any Consignee to estop Purchaser from seeking payment.

9.18 Seller shall immediately provide Purchaser with written notice of any billing dispute including, but not limited to, any challenge made by a Shipper as to the applicability or reasonableness of any rate or any claim for loss or damage to cargo.

9.19 No Account offered for sale to Purchaser represents any agreement or is supported by a Bill of Lading indicating that freight charges have been or are otherwise marked “prepaid” unless Purchaser agrees otherwise in writing.

9.20 Seller shall offer no Account for sale to Purchaser where a Consignee (not a beneficial owner of the goods) has issued any notice of non-beneficial owner status unless expressly disclosed in writing to Purchaser.

9.21 Seller shall offer no Account for sale to Purchaser where to Seller’s knowledge, the Shipper has engaged any third-party freight bill payment or auditing company to collect freight payments for payment to Seller unless expressly disclosed in writing to Purchaser prior to sale.

9.22 No Account shall be offered for sale to Purchaser unless the order giving rise to the Account was made by the Shipper and not from any transportation Broker or Freight Forwarder unless such transportation Broker or Freight Forwarder has provided Seller with a written acknowledgment that the Shipper expressly assumes any risk of loss in the event the transportation Broker or Freight Forwarder fails to furnish payment to Seller.

9.23 Seller has not and will not, in writing, establish any credit period beyond fifteen (15) days unless specifically disclosed to Purchaser, in writing, prior to sale.

9.24 Seller has and will immediately provide its Shippers notice of Seller’s right to seek all reasonable damages for all costs incurred in the collection of overdue freight charges, including the right to recover attorney’s fees and costs, and both provide for such damages on Seller’s Bill of Lading or original invoice and describe same in Seller’s tariffs.

9.25 Seller has not and will not, accept any Goods with regard to an Account which is subject to a requirement that Seller collect payment for the Goods at time of delivery, unless expressly disclosed to Purchaser in the Invoice Documentation

9.27 Seller will not knowingly accept to haul any load that has been brokered by any party that fails to have been duly registered as a Freight Broker with the Federal Motor Carrier Safety Administration, nor will Seller attempt to or actually broker any load.

9.28 Seller will not solicit any additional advances from either Purchaser or any third party after the time of accepting any freight for transportation.

9.29 Seller will notify Purchaser of any existing or newly created business if owned in part or whole by Seller or Seller’s principals that are in any way related to or associated with the transportation industry; such business may include, but not limited to, Carrier, Broker, Freight Forwarder, or logistics company.

9.30 Each invoice evidencing an Account offered to Purchaser for sale will contain: the billed to party, the shipped to party, the rate to haul the freight, any advance amounts taken upon acceptance of the freight, and all other charges, accessorial or otherwise, including, but not limited to, any unloading fees, tolls, tarp charges and pallet exchanges.

9.31 Seller has not received any vehicle out-of-service order and if it does, Seller will immediately notify Purchaser of such order.

9.32 Seller has not knowingly committed and shall not commit any violation of the Federal Motor Carrier Safety Regulations pertaining to recordkeeping and non-recordkeeping, falsification of records or financial responsibility.

9.33 All information contained and maintained by the Motor Carrier Management Information System is correct and up to date including Seller’s obligation to obtain and have in effect not less than the minimum levels of financial responsibility as prescribed by 49 C.F.R. part 387 of the Code of Federal Regulations (hereinafter only “C.F.R.”).

9.34 Seller issues, in its own name and not in the name of any party, a shipping receipt or Bill of Lading and a freight or expense bill for each shipment transported in the form required by C.F.R. Part 373 and transports the Goods in accordance with any applicable contract with a Shipper, operating tariffs and schedules and each Account that Seller offers Purchaser for sale represents property to be transported that has been delivered by the Shipper to the Seller for immediate transportation. All such shipping receipts or Bills of Lading to the Shipper for the Goods, and all Bills of Lading for interstate shipments shall be in a form and issued in compliance with the Federal Bills of Lading Act (49 U.S.C. § 80102) and 49 C.F.R. Part 373.

9.35 Each Account that Seller offers Purchaser for sale represents Goods that have been transported and delivered in accordance with all shipping directions issued by Shippers.

9.36 All records of Seller have been maintained as prescribed by 49 U.S.C. § 14706, 14907 of the United States Code and as prescribed by 49 C.F.R. Part 379.

9.37 Seller duly prepares and files all necessary Heavy Highway Vehicle Use Tax Returns (Form 2290) and Schedule 1.

9.38 Seller does not, among itself or with any other entity, except through an interchange of equipment as set forth in 49 C.F.R. § 376.31, perform authorized transportation in any motor vehicle, straight truck, full trailer or any combination, it does not own without first complying with 49 C.F.R. Part 376 regarding leasing regulations.

9.39 Seller will not offer any Account for purchase whereby any multi-model transaction involves a rail carrier to transport a trailer-on-a-flat car and in respect to which Seller engages or uses any additional motor carrier to take possession of the freight after delivery by rail.

9.40 Seller has not and will not, in conjunction with any other motor carrier, through the use of common ownership, common management, common control, or common familial relationship seek to avoid compliance, or mask or otherwise conceal non-compliance, or a history of non-compliance, with statutory or regulatory requirements prescribed under 49 U.S.C. Chapter 311, subchapter III, or with an order issued under such requirements to avoid regulatory compliance or mask or otherwise conceal regulatory noncompliance, or a history of noncompliance.

10. Waiver

10.1. No failure to exercise and no delay in exercising any right, power, or remedy hereunder shall impair any right, power, or remedy which Purchaser may have, nor shall any such delay be construed to be a waiver of any of such rights, powers, or remedies, or any acquiescence in any breach or default hereunder; nor shall any waiver by Purchaser of any breach or default by Seller hereunder be deemed a waiver of any default or breach Successively occurring. All rights and remedies granted to Purchaser hereunder shall remain in full force and effect notwithstanding any single or partial exercise of, or any discontinuance of action begun to enforce, any such right or remedy. The rights and remedies specified herein are cumulative and not exclusive of each other or of any rights or remedies that Purchaser would otherwise have. Any waiver, permit, consent or approval by Purchaser of any breach or default hereunder must be in writing and shall be effective only to the extent set forth in such writing and only as to that specific instance.

11. Cancellation and Term

11.1 This Agreement will be effective on the date accepted by Purchaser and will continue in full force and effect for an initial term equal to the Agreement Term specified in the Factoring Services Agreement and shall be further extended automatically for periods equal to the Agreement Term (“Successive Term(s)”) unless cancelled earlier pursuant to this Agreement.

11.2 Seller may cancel this Agreement effective at the end of the Agreement Term or at the end of any Successive Term(s) by providing Purchaser a written notice of Cancellation at least sixty (60) days, but not more than ninety (90) days, prior to the end of the Agreement Term or Successive Term(s). If Seller is in default of this Agreement at the time notice of Cancellation is given, or subsequently thereafter, such notice shall not be effective and all provisions of this Agreement shall still apply.

11.3 Purchaser in its sole discretion may cancel this Agreement (i)at the end of the Agreement Term or successive term(s) without further notice to Seller, (ii) at any time regardless of Agreement Term or successive term(s) after providing Seller 30 days written notice, or (iii) in Event of Default, Purchaser may cancel this Agreement immediately. If Purchaser cancels this Agreement following the occurrence of an Event of Default, upon the effective date of such Cancellation, Seller shall pay to Purchaser a Cancellation fee equal to ten percent of the then existing balance of the face value of Seller’s Purchased Accounts or two thousand five hundred dollars, whichever is greater, (the “Cancellation Amount”).

11.4 Seller hereby acknowledges and agrees that Purchaser has incurred significant time and expense establishing this factoring relationship and Seller hereby agrees to pay Purchaser a reasonable fee to cover all such expenses (the “Underwriting Expense”). The Underwriting Expense shall be deemed earned at the time the terms of this Agreement are accepted by Seller. However, Purchaser agrees to condition the payment of such fees upon one or more of the following: In the event that Seller (i) cancels this Agreement without having provided Eligible Accounts equaling at least fifty percent of the Purchased Invoices Limit, for any reason, for purchase to Purchaser under this Agreement, (ii) provides no Eligible Accounts for purchase to Purchaser for a period of 90 days, (iii) elects to move their accounts from Purchaser to another financing company, or (iv) cancels this agreement in contravention of Section 11.2 for any reason whatsoever.

11.5 Notwithstanding the foregoing if at the time, Seller has sent an effective notice of Cancellation setting forth the intended Cancellation date but fails to pay all the Obligations in cash by the intended Cancellation date, then Purchaser may, but shall not be required to, reinstate this Agreement as if notice to terminate had not been given.

11.6 Any payments received by Purchaser from any Account Debtor following the Cancellation of this Agreement may be, at Purchaser’s option, (i) be applied to repay any outstanding Obligations hereunder, (ii) forwarded to Seller, or (iii) returned to such Account Debtor. Purchaser shall (i) not bear any responsibility or liability with respect to any such payments, and (ii) shall retain one percent of the amount of any such payments received to cover Purchaser’s costs of handling such payments.

12. Amendment and Entire Agreement

12.1 Neither this Agreement nor any provisions hereof may be changed, waived, discharged, or terminated, nor may any consent to the departure from the terms hereof be given, orally (even if supported by new consideration), but only by an instrument in writing signed by all parties to this Agreement. Any waiver or consent so given shall be effective only in the specific instance and for the specific purpose for which given.

12.2 This Agreement supersedes all other agreements and understandings between the parties hereto; verbal or written, express or implied, relating to the subject matter hereof. No promises of any kind have been made by Purchaser or any third party to induce Seller to execute this Agreement. No course of dealing, course of performance or trade usage, and no parole evidence of any nature, shall be used to supplement or modify any terms of this Agreement.

13. Severability, Survival, Conflict, and Enforcement

13.1 Severability. In the event any one or more of the provisions contained in this Agreement is held to be invalid, illegal, or unenforceable in any respect, then such provision shall be ineffective only to the extent of such prohibition or invalidity, and the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.

13.2 Survival. All representations, warranties and agreements herein contained shall be effective so long as any portion of this Agreement remains executory.

13.3 Conflict. Unless otherwise expressly stated in any other agreement between Purchaser and Seller, if a conflict exists between the provisions of this Agreement and the provisions of such other agreement, the provisions of this Agreement shall control.

13.4 Enforcement. This Agreement and all agreements relating to the subject matter hereof is the product of negotiation and preparation by and among each party and its respective attorneys and shall be construed accordingly.

14. Successor Entity.

13.1 In the event, during the Term of this Agreement or while Seller remains liable to Purchaser for any Obligations under this Agreement, Seller’s principal(s), officer(s) or director(s) directly or in conjunction with any other person, causes to be formed a new entity or otherwise become associated with any newly formed or existing entity that provides goods or services similar to those of Seller, whether corporate, partnership, limited liability company or otherwise, such entity shall be deemed to have expressly assumed the Obligations Seller owes Purchaser under this Agreement. With respect to each such entity, Purchaser shall be deemed to have been granted an irrevocable power of attorney with authority to file a new UCC-1 Financing Statement naming such newly formed or existing entity as Debtor, and to have it filed with any and all appropriate secretaries of state or other UCC filing offices. Purchaser shall be held harmless by Seller and its principals, officers or directors and be relieved of any liability as a result of Purchaser’s filing of any such Financing Statement or the resulting perfection of its Collateral and Security Interests in such entity’s assets. In addition, Purchaser shall have the right to notify such entity’s Account Debtors of Purchaser’s rights, including without limitation, Purchaser’s right to collect all Accounts, and to notify any creditor of such entity that Purchaser has rights in such entity’s assets.

15. Attorney’s Fees.

15.1 Seller agrees to reimburse Purchaser on demand for the actual amount of all costs and expenses, including attorneys’ fees (collectively, “Expenses”), which Purchaser has incurred or may incur in the negotiating and preparing this Agreement and any documents prepared in connection herewith as well as any such Expenses Purchaser incurs in protecting, preserving or enforcing any lien, security or other right granted by Seller to Purchaser or arising under applicable law, whether or not suit is brought, including but not limited to the defense of any Avoidance Claims or the defense of Purchaser’s lien priority including Expenses which Purchaser may incur in enforcing this Agreement and any documents prepared in connection herewith, or in connection with any federal or state insolvency proceeding commenced by or against Seller, including those (i) arising out the automatic stay, (ii) seeking dismissal or conversion of the bankruptcy proceeding or (ii) opposing confirmation of Seller’s plan there under.

15.2 Notwithstanding the existence of any law, statute (including, but not limited to Tx. Civ. Prac. & Remedies Code Chapter 38) rule or otherwise, in any jurisdiction which may provide Seller with a right to attorney’s fees or costs, Seller hereby waives any and all rights to seek such attorney’s fees or costs and Seller agrees that Purchaser exclusively shall be entitled to indemnification and recovery of any and all attorney’s fees or costs in respect to any litigation based hereon, arising out of, or related hereto, whether under, or in connection with, this and/or any agreement executed in conjunction herewith, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of either Party so long as Purchaser prevails in any respect and without having to segregate or identify the specific claims for which such fees were incurred.

16. Choice of Law; Account Purchase Transaction; True Sale

16.1. In respect to all fees and charges under this Agreement and all issues of ownership of the Accounts Purchased and any section of this Agreement where Texas law is specifically referenced, this Agreement and all transactions contemplated hereunder and/or evidenced hereby shall be governed by, construed under, and enforced in accordance with the internal substantive laws of the State of Texas without application of any choice of law doctrine. As to all other issues arising under or related to this Agreement, they shall be governed by, construed under, and enforced in accordance with the internal substantive laws of the State of California.

17. JURY TRIAL WAIVER

17.1 THE PARTIES HERETO WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER, OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THIS AGREEMENT OR THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH RESPECT HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE AND EACH PARTY FURTHER WAIVES ANY RIGHT TO CONSOLIDATE ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.

18. Class Action Waiver.

18.1 Purchaser and Seller each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

19. Factoring Polices and Rules.

19.1 In the event Purchaser creates or maintains any written factoring policies or rules (“Policies”) during the Term of the Agreement, after notice is given by Purchaser to Seller of such Policies, they shall be deemed incorporated into and made a part of this Agreement. In the event of any express conflict exists or arises between this Agreement and the Policies, the terms of this Agreement shall control.

20. Venue and Jurisdiction.

20.1. The parties agree that any suit, action or proceeding arising out of the subject matter hereof, or the interpretation, performance, or breach of this Agreement, shall, if Purchaser so elects, be instituted exclusively in any court having jurisdiction and venue and sitting in the State of California (the “Acceptable Forums”). Each party agrees that the Acceptable Forums are convenient to it, and each party irrevocably submits to the jurisdiction of the Acceptable Forums, irrevocably agrees to be bound by any judgment rendered thereby in connection with this Agreement and waives any and all objections to jurisdiction or venue that it may have under the applicable Choice of Law. Seller waives any right to oppose any motion or application made by Purchaser as a consequence of such proceeding having been commenced in a forum other than an Acceptable Forum.

21. Assignment

21.1. Purchaser may assign its rights and delegate its duties hereunder. Upon such assignment, Seller shall be deemed to have attorned to such assignee and shall owe the same obligations to such assignee and shall accept performance hereunder by such assignee as if such assignee were Purchaser.

22. U.S. Patriot Act.

22.1 Purchaser notifies Seller that to the extent the requirements of the USA Patriot Act (Title III of Pub. Law 107-56 (signed into law October 26, 2001)) (the “US Patriot Act”) requires Purchaser to obtain, verify and record information that identifies Seller, which information includes the name of Seller and other information that will allow Purchaser to identify Seller in accordance with the US Patriot Act, Seller agrees to provide such information from time to time to Purchaser, as applicable.

23. Electronic Execution.

23.1 Execution of this Agreement may be done through a traditional, manual signature, or the parties agree that an electronic signature may be used and that the electronic signature of a party included in this Agreement is intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic Signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record, including facsimile or email electronic signatures. Any electronic communication of data, whether by e-mail, tape, disk, or otherwise, Seller remits or causes to be remitted to Purchaser shall be authentic and genuine.

RIDER TO THUNDER FUNDING’S FACTORING SERVICES AGREEMENT AND COMPANION TERMS, CONDITIONS AND DEFINED TERMS THERETO
(California Sellers)

This Rider (“Rider”) shall serve to amend and supplement Thunder Funding’s Factoring Services Agreement as well as the Terms, Conditions and Defined Terms to that Factoring Services Agreement (collectively, “Factoring Agreement”) between the Seller and Purchaser. Except as expressly provided herein, the terms of the Factoring Agreement shall remain unaltered by the execution of this Rider.

Recitals:

Whereas, Seller has or expects to enter into the above-stated Factoring Agreement with Purchaser whereby such transaction qualifies as a specific commercial financing offer that is equal to or less than five hundred thousand dollars ($500,000); and,

Whereas, Purchaser has been informed by Seller that Seller’s business is principally directed or managed from the State of California and Seller qualifies as a “Small business” due to it fully satisfying each of the following criteria:

(i) An independently owned and operated entity that is not dominate in its field of operation;
(ii) the principal office of which is located in California;
(iii) the officers of which are domiciled in California; and
(iv) that together with its affiliated entities has 100 or less employees; and, has average annual gross receipts of $15,000,000 or less over the preceding three years.

Whereas, Purchaser is prepared to enter into and/or or continue to perform under the Factoring Agreement conditioned upon the terms of the Factoring Agreement being amended or supplanted in accordance with the terms of this Rider;

Whereas, the Factoring Services Agreement is subject to the full Terms and Conditions of Purchaser and the terms of this Rider which is applicable to California Sellers that qualify as Small Businesses or Small Business Owners, as defined in the Rider, are located at the following hyper-link (www.thunderfunding.com/terms-and-conditions (both of the above, “Terms and Conditions”); and

Whereas, each term used in this Rider shall have the same meaning as such terms may be defined in the Terms and Conditions;

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:

1. The above Recitals are hereby incorporated in this Rider.

2. Unless specified otherwise, all defined terms and words that are capitalized in this Rider shall have the same meaning as used in the Factoring Agreement.

3. The following terms of the Factoring Agreement as noted below are hereby supplanted or deleted as noted below by the terms of this Rider:

a. Section 1.27 of the Factoring Agreement entitled, “Misdirected Payment Fee”, is hereby deleted.

b. Section 1.28 of the Factoring Agreement entitled, “Missing Notation Fee”, is hereby deleted:

c. Section 1.46 of the Factoring Agreement entitled, “Unnoted Advance Fee”, is hereby deleted

d. Section 2.3 of the Factoring Agreement entitled, “Fees and Expenses” is hereby supplanted as follows:

Fees and Expenses. Seller shall pay to Purchaser the.

2.3.1 Factoring Fee. On all Accounts purchased by Purchaser.

2.3.2 Invoice Processing Fee. $0.99 for each invoice submitted for purchase outside of the Thunder Mobile App or desktop portal.

2.3.2 Late Charge. On demand all amounts and Obligations that are due to Purchaser and past due over 60 days.

2.3.3 If the Seller is a Small Business, no provisions in this Rider or the Factoring Agreement shall result in any fees being charged to Seller by Purchaser for any one or more of the following: (i) accepting or processing a payment required by the terms of the Factoring Service Agreement, (ii) providing Seller with documentation prepared by the Purchaser that contains a statement of the amount due to satisfy the remaining amount owed, (iii), or, filing or terminating a lien filed in accordance with the provisions of the Uniform Commercial Code against the Seller’s assets that exceeds 150 percent of the cost of the filing or termination.

e. Section 11 of the Factoring Agreement entitled, Cancellation and Term”, and more specifically, section 11.3 is hereby supplanted as follows:

Purchaser in its sole discretion may cancel this Agreement (i) at the end of the Agreement Term or successive term(s) without further notice to Seller, (ii) at any time regardless of Agreement Term or successive term(s) after providing Seller 30 days’ written notice, or (iii) in Event of Default, Purchaser may cancel this Agreement immediately. If Purchaser cancels this Agreement following the occurrence of an Event of Default, the effect of such cancellation shall authorize Purchase to suspend all of its monetary and non-monetary Obligations under this Agreement but shall not serve to affect in any manner Seller’s monetary and non-monetary Obligations owing to Purchaser until a Complete Termination occurs. In addition, Purchaser shall be entitled to all compensatory damages arising from a cancellation that is effectuated by Purchaser under this section.

f. Section 17 of the Factoring Agreement entitled, “Jury Trial Waiver”, is hereby supplanted with this section entitled, “Alternative Dispute Resolution Mechanism” which reads as follows:

17.1 The enforcement of the Factoring Agreement and this Rider shall be conducted in accordance with the forum’s state’s laws applicable to arbitration except to the extent that the Federal Arbitration Act (9 U.S.C. § 1 et. seq.) governs and/or controls. Arbitration shall only be in one of the Acceptable Forums and the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, effective September 1, 2022, (as may be amended) and the Procedures for Large, Complex Commercial Disputes shall apply only if the amount in dispute, based on the Demand for Arbitration, is equal to or greater than One Million Dollars ($1,000,000).

17.3 The arbitrator shall not have the power to commit (a) errors of law or legal reasoning, (b) errors of fact, or (c) errors with regards to mixed questions of law and fact. In addition, the arbitrator shall not reach factual conclusions unsupported by substantial evidence. Furthermore, the arbitrator shall not have the power to render an award (a) not based on proper admissible evidence, (b) based on evidence not presented at the hearing, or (c) not in conformity with the substantive and procedural law of the State of Texas to the extent that such laws are made applicable under these Terms and Conditions.

17.2.3 In any arbitration arising out of or related to this agreement, the arbitrator is not empowered to award punitive or exemplary damages, except were permitted by statute, and the Parties waive any right to recover any such damages.

17.2.4 If the arbitrator exceeds any of the foregoing specific powers, the award may be vacated or corrected by filing either, as may be appropriate, an application to vacate or to modify or correct the award in one of the Acceptable Forums.

17.2.5 The Parties each acknowledge that the arbitration proceeding will require the payment of fees and costs to conduct the arbitration. The Parties each agree to initially divide equally all arbitration fees and the compensation of the arbitrator(s). Notwithstanding the foregoing, the Parties each further acknowledge that the arbitrator(s) may decide that one party or the other is the prevailing party in which event the non-prevailing party will be obligated to reimburse the prevailing party for all the fees and costs imposed in connection with the arbitration. In the event that one of the Parties fails or refuses to timely pay any required fees assessed by or due to the American Arbitration Association and if such Party fails to make any such payment within 2 business days after receipt of 5-days written notice to pay made by the non-breaching party, the non-paying party shall be deemed to be in default of this Section and the non-breaching party may, but shall not be required to, treat such non-payment as an irrevocable waiver by the breaching party of its right to compel arbitration as well as any other rights that may be available for such breach.

4. Each of the terms and provisions of the Factoring Agreement that are unaltered by the terms of this Rider shall remain in full force and effect and the terms of this Rider and the terms of the Factoring Agreement shall be construed and enforced as a single fully integrated agreement. In the event of any inconsistency between the terms of the Factoring Agreement and the terms of this Rider, the terms of the Rider shall govern.

RIDER TO TERMS, CONDITIONS AND DEFINED TERMS
(Pre-Delivery Load Fuel Advances)

RECITALS:
WHEREAS, pursuant to the Factoring Services Agreement, Seller was given the opportunity to offer Eligible Accounts (as defined in the Factoring Agreement) to Purchaser which required that, among other things, each of the Covenants, Representations and Warranties contained in sections 5, 7 and 8 of the Factoring Agreement be true and correct, and,

WHEREAS, pursuant to this Rider, Seller is hereby given the opportunity to offer its unearned Accounts (as such term is defined by the Uniform Commercial Code as enacted by the States of Texas and California) to Purchaser in expectation that all motor carrier’s surface freight transportation services shall be performed so that the Account will thereafter qualify as an earned and Eligible Account (as defined in the Factoring Agreement),

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions, the parties hereto agree as follows:

AGREEMENT

1. Defined Terms.

1.1 Each of the capitalized terms used in the Recitals (except as otherwise noted) and all terms used in this Rider shall have the meanings given to such terms in the Factoring Agreement.

1.2 “Advance” for the purpose of this Rider, means any monetary amount paid by Purchaser to Seller prior to time that an Account qualifies as an Eligible Account and satisfies the warranty contained in Section 7.4 but with the expectation that all such qualifications shall be timely satisfied in due course.

1.3 “All-In-Value” as described in Section 2.1.3 below.

1.4 “Advance Fee Discount” means:

1.4.1 On advances up to Five Hundred Dollars, a fee of $10.00

1.4.2 On advances between Five Hundred Dollars and Two-Thousand Dollars, a fee of $20.00

1.4.3 On advances in excess of Two-Thousand Dollars, a fee of $25.00.

1.5 “Seller’s Load Services’ Expenses” means expenses necessary for Seller to obtain fuel in order to complete the delivery of freight being transported in connection with the Advance requested and All-In-Value.

2. Conditions Imposed On Seller.

2.1 For the purposes of this Rider, Seller may offer Accounts to Purchaser if such Accounts are offered by Seller with the unconditional expectation that the Accounts will promptly qualify as Eligible Accounts subject to and conditioned upon the express conditions of this Rider as itemized below:

2.1.1 For each Account offered for sale under this Rider and an Advance request is made by Seller, Seller shall identify the Load that is to be transported pursuant to the Load Services and, at the time an Advance is made, the Seller shall have satisfied all Representations and Warranties contained in Sections 5, 7 and 8 of the Factoring Agreement other than each of the following: (i) an unconditional obligation of the relevant Account Debtor to pay the full amount of the Net Face Value of such Account, (ii) actual acceptance of the Load, or, (iii) delivery of the Load, each of which shall be satisfied promptly after the date of the Advances and in due course.

2.1.2 The Advance requested by Seller shall be for the sole and exclusive purpose of Seller’s Load Services’ Expenses required for the completion of Load Services.

2.1.3 The Seller shall provide Purchaser with all required supporting documentation that evidences the total amount to be paid by a Shipper or Consignee (“All-In-Value”) upon due and proper delivery of the Load and proper performance of all Load Services.

2.1.4 The amount of any Advance payable under this Rider shall be in the sole discretion of Purchaser.

3. Advance Purchase Price Calculation. The maximum Advance made under this Rider, shall not exceed the lesser of fifty percent (50%) of the All-In-Value or Two Thousand Five Hundred and Twenty-Five Dollars ($2,525).

4. Fees and Payments. The Advance paid to Seller under this Rider and the method of repayment of the Advance are as follows:

4.1 The Purchase Price Advance Fee Calculation shall be as follows: Seller shall initially receive the Advance less the Advance Fee Discount.

4.2 The Final payment calculation after the Account qualifies as a Purchased Account: After delivery of the Load in connection with which an Advance has been made, Seller shall be required to sell the Account. The Purchase Price of the Account shall be calculated by taking the total All-In-Value multiplied by the applicable Advance Rate less the Advance after which Seller shall receive the remaining Purchase Price balance.

5. Parties Bound.

5.1 This Rider shall be binding upon and inure to the benefit of each party and their respective heirs, executors, administrators, successors, and assigns.

6. Construction.

6.1 This Rider constitutes a complete agreement of the parties as to its content and is intended to be a fully integrated agreement; however, the Factoring Agreement and this Rider shall be construed as a single agreement and except to the extent that this Rider is intended to supplement the Factoring Agreement, the Factoring Agreement shall otherwise remain unaltered and unaffected by the terms of this Rider. Moreover, except for the provisions contained in this Rider, all other terms of the Factoring Agreement are reaffirmed by Seller and shall remain unchanged by this Rider. There are no provisions of any nature whatsoever relating to the subject matter of this Rider which are not contained herein and no representations or statements of any kind, other than as contained herein, have been made by the parties hereto or any of their agents or representatives. This Rider supersedes all prior negotiations, offers and discussions with respect to the subject matter hereof.