WILLA PAY TERMS AND CONDITIONS AGREEMENT

 

This Willa Pay Terms and Conditions Agreement establishes the terms and conditions of your agreement with Willa Inc., a Delaware corporation (“Willa”), for themselves and their respective successors and permitted assigns.  For purposes of this Agreement, “You”, “your” and “Merchant” each refer to the entity or person(s) who has established the ability to access, accessed, used or otherwise accepted the services or funding provided by Willa.

This document, and any future changes or additions to it made by Willa, is your contract with Willa.  By establishing the ability to access, accessing, using or otherwise accepting any of the services or funding provided by Willa, you agree to the then-current terms and conditions of this Agreement.  Please read it carefully and keep it with your records.

THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION, WHICH IS LOCATED IN SECTION 10.15.  PLEASE READ IT CAREFULLY.  THE PROVISION MAY RESULT IN LEGAL CLAIMS OR DISPUTES REGARDING YOU, WILLA OR THIS AGREEMENT BEING ARBITRATED ON AN INDIVIDUAL BASIS ONLY, AND NOT ON A CLASS ACTION BASIS, OR IN A COURT.

 

RECITALS

A.         In the ordinary course of its business Merchant generates Receivables (as defined below) arising from the provision of goods and/or services by or on behalf of Merchant to its Customers (as defined below);

B.         Subject to the terms and conditions of this Agreement, Merchant desires to engage Willa to act as third-party servicer of the portfolio of such Receivables for and on behalf of Merchant, and Willa desires to accept such engagement and act as servicer of the Receivables; and

C.         Subject to the terms and conditions of this Agreement, Merchant may have the option to request that Willa purchase one or more of the Receivables, in whole or in part, and Willa will have the option to decide whether or not to purchase the same.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties hereby agree as follows:

Article I.          DEFINITIONS

Section 1.01           For purposes of this Agreement, each of the following terms shall have the meaning specified with respect thereto:

AAA” is defined in Section 10.15(c).

Adjustment” is defined in Section 2.03.

Affiliate” means, with respect to any person, any other person which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such person.

Agreement” means this Willa Pay Terms and Conditions Agreement and any terms incorporated herein by reference, as the same may be amended, supplemented or restated from time to time.

App” means the mobile device application established by Willa for use by Merchant to obtain services from and to communicate with Willa, as the same may be amended, modified or replaced by Willa in its sole discretion from time to time.

Applicable Law” means, at any time, any United States federal, state, commonwealth or local law, statute, rule, regulation, court order or decree, administrative order or decree, and other legal requirements or guidance of any type applicable to Merchant, a Receivable, a Purchased Receivable, or Willa, respectively.

Arbitration Agreement” is defined in Section 10.15.

Arbitration Organization” is defined in Section 10.15(c).

Business Day” shall mean any day other than Saturdays, Sundays or other day on which banks in Delaware are required or authorized by Applicable Law to close.

Class Action Waiver” is defined in Section 10.15(d).

“Confidential Information” means all information, data, or materials that:

(a)        Are marked or designated as proprietary or confidential;

(b)       Are competitively sensitive, commercially valuable, or otherwise proprietary to Willa or Merchant, respectively (whether or not marked as proprietary or confidential) and that the recipient knows or should reasonably know are proprietary or confidential;

(c)        The recipient receives from the disclosing party or otherwise gains knowledge of or access to in a manner consistent with their confidential or proprietary nature; or

(d)       Belong to a third party and that the recipient knows or reasonably should know the disclosing party is obligated to keep confidential.

This definition covers all information, data, or materials that are in fact confidential, regardless of whether they are disclosed in writing, verbally, electronically, or in another format or by virtue of the recipient’s review, observation, or inspection of any objects, facilities, documents, processes, systems, or other media in which the information, data, or materials are contained or can be found.  Confidential Information of Merchant and Willa includes its/their trade secrets,business plans, strategies, forecasts or forecast assumptions, operations, methods of doing business, records, finances, assets, intellectual property, technology (including computer software and hardware, databases, data processing and communications networking systems), supplier information, notes, analyses, compilations, studies, data or other information that reveal the research, technology, practices, procedures, processes, methodologies, know how, or other systems or controls by which Merchant’s or Willa’s, respectively, existing or future products and methods of operation or doing business are developed, conducted or operated, and all information or materials derived therefrom or based thereon.  Confidential Information of Willa also includes all products, systems, and methodologies provided or obtained by Willa from a third party for use by or through Willa; and modifications to the Willa processing system (including any modifications thereof); Website or App screen displays; Website or App screen formats; data formats; computer software; software performance results; system architecture; system processes; flow charts; specifications; and documentation related to each of the foregoing, in each case, whether owned, licensed, or otherwise provided by or through Willa.

Notwithstanding the foregoing, the definition of “Confidential Information” does not include any information that:

(i)        Was in the public domain before the date of this Agreement or subsequently entered the public domain through no fault or neglect of the recipient, it being understood that disclosure made pursuant to the terms of this Agreement shall not be deemed public domain disclosure by either party;

(ii)       Was rightfully received by the recipient from an unaffiliated third party, free of any obligation of confidence to or other restriction in favor of such third party (to the extent that any such obligation or restriction is known to the recipient or could be discovered by the recipient through the exercise of reasonable diligence) and without breach of this Agreement;

(iii)      Was rightfully in the recipient’s possession without restriction on use or disclosure before it received or obtained the information, as evidenced by written documentation; or

(iv)    Was independently developed by the recipient without reference to or use of any of the Confidential Information of the other party.

Customermeans a business entity, association, sole proprietorship, or any other similar organization or individual to whom Merchant provides, agrees to provide, or arranges to be provided goods and/or services in exchange for compensation, or that acts as placement or distribution agent for Merchant, and who is an obligor under any Receivable, including any guarantor of a Receivable.

Cut-Off Date” is defined in Section 2.07.

Data Errors” is defined in Section 4.04.

Dispute” is defined in Section 10.15(b).

Early Payment Request” is defined in Section 2.01.

FAA” is defined in Section 10.15(g).

Force Majeure Event” is defined in Section 10.08.

“Merchant” is defined in opening paragraph of this Agreement.

“Merchant Provided Contract Data” is defined in Section 4.04.

Payment Accountmeans the valid United States-located bank account, PayPal account, debit card, prepaid card, or other financial deposit account that Merchant owns and links to its Willa Account.

Prior Agreement” is defined in Section 10.15(b).

“Proceeds” is defined in Section 4.05.

“Proceeds Account” is defined in Section 4.05.

Purchase Discount Fee” is defined in Section 2.02.

Purchase Price” is defined in Section 2.02.

Purchased Receivable” means and includes a Receivable, or the applicable percentage portion thereof, which has been purchased by Willa in accordance with the terms and conditions of this Agreement.

Receivable means the account receivable, including the contractual and equitable rights to payment thereof, from a Customer located in the United States, generated and arising out of the provision of, or agreement to provide or to arrange for the provision of, product(s) and/or service(s) by or on behalf of Merchant to such Customer or to its designee, and any and all other account receivable-related rights, in connection with which Merchant has requested through the Website or the App, that Willa invoice and otherwise service as contemplated in this Agreement.  In addition, “Receivable” means and includes: (i) all collections, finance charge, late payment fees, insufficient fund fees or other amounts paid or payable by a Customer, and all proceeds received or obtained arising from or related to such Receivable (regardless of form of payment, and whether received from a Customer, for the benefit of a Customer, or on behalf of a Customer); (iii) all books and records, invoices, documents, disclosures, notices, contract rights, contractual agreements and terms and conditions, claims, chattel paper (whether tangible or electronic), instruments (including any promissory notes), rights to payment of money, general intangibles, and deposit accounts evidencing, related to or arising from such account receivable; and (iv) all other rights and information relating to the foregoing, in each case whether now owned or hereafter acquired, and wherever located. 

Recipient Parties” is defined in Section 4.06(a)(i).

Regulatory Authority” means any United States federal, state or local regulatory agency or other governmental agency or authority having jurisdiction over a party, any Receivable, or any Customer.

Repurchase Event” is defined in Section 2.07.

Repurchase Price” is defined in Section 2.07.

Services” shall mean those Willa Account and Receivables billing, management, Customer service and collection services, which Willa agrees to provide Merchant hereunder, and Merchant agrees to accept or accepts from Willa from time to time, in accordance with and subject to the terms of this Agreement.  

Servicing Fee” is defined in Section 3.06(a).

Standard Operating Procedures” means Willa’s standard servicing operating policies and procedures, as the same may be amended from time to time by Willa in its sole discretion.

Term” is defined in Section 9.01.

Termination Date” is defined in Section 9.01.

Transaction Information” is defined in Section 5.04(a).

Website” mean willapay.com and any associated domain, subdomain, native application or successor site.

Willa” is defined in the opening paragraph of this Agreement.

Willa Account” means the account maintained by Willa that Merchant opens using the Website or the App, to communicate with, provide and obtain information from, and obtain products, Services and payments from Willa, in all cases solely for business or commercial purposes, and not for any personal, family, household or other consumer purpose.

Willa Subcontractor” means any direct or indirect sub-subcontractor to, or agent or representative of Willa, that performs any Service hereunder.

“You” and “Your” are each defined in opening paragraph of this Agreement.

Section 1.02           Rules of Interpretation. Each definition in this Agreement includes the singular and plural.  The word “including” means “including but not limited to,” and the word “includes” means “includes but is not limited to.” The word “and” means only “and.”  The word “or” means both “and” and “or,” except where the context clearly indicates that the parties intend “or” to designate alternatives only, including when the word “either” or similar words or phrases are used.  Text enclosed in parentheses has the same effect as text that is not enclosed in parentheses.  References to any statute or regulation mean the statute or regulation as amended at the relevant time and include any successor statute or regulation.  References to “days” mean calendar days unless otherwise indicated through the use of the phrase “Business Day.”  No rule of strict construction may be applied against any party hereto on the basis that such party was the “drafter” of this Agreement.  The section headings in this Agreement are solely for convenience of reference and do not affect the construction or interpretation of this Agreement.  Unless something in the subject matter or context is inconsistent therewith, references herein to Sections are to Sections of this Agreement.

Article II.       PURCHASE OF RECEIVABLES

Section 2.01                 Early Payment Request; Purchase of Receivables by Willa.  Upon the request of Merchant, delivered to Willa via the Website or App in accordance with the applicable requirements specified by Willa therein, that Willa purchase a given Receivable in whole or in part (each, an “Early Payment Request”), Willa shall review and make its determination of whether or not it will purchase such Receivable, in whole or in part.  Notwithstanding any other provision of this Agreement, the Website or the App, Willa reserves the right to decline to purchase all or any portion of a Receivable, for any reason or no reason, in its sole discretion, and may temporarily or permanently discontinue and/or resume purchasing any Receivable(s) at any time.  Once Willa makes its determination (including after having contacted the applicable Customer to confirm Customer’s approval of the Receivable, if Willa deems it necessary or appropriate to do so), Willa will respond to the Early Payment Request by notifying Merchant of Willa’s decision via the Website or App, as applicable.

Section 2.02                 Purchase of Receivables; Purchase Price.  In the event Willa agrees to purchase a Receivable in whole or in part in response to an Early Payment Request, the purchase price of such Receivable shall equal the amount of the outstanding balance of such Receivable (or the portion thereof being purchased), minus the fee (each, a “Purchase Discount Fee”) as determined by Willa and disclosed to Merchant as part of Willa’s response to the Early Payment Request (the “Purchase Price”).

(a)        Upon agreement by the parties to the sale of a Receivable (or the applicable percentage thereof) and to the Purchase Discount Fee and resulting Purchase Price thereof using the Website or App, and subject to the other terms of this Agreement, Willa will purchase the agreed upon amount of the Receivable for the Purchase Price, by causing the amount of such Purchase Price to be credited to Merchant’s Willa Account.  At the time of each Purchased Receivable purchase, Merchant shall sell, transfer, convey and assign to Merchant all of its right, title and interest in and to the Purchased Receivable.  For the avoidance of doubt, Willa does not and will not assume or be liable for the performance of any of the liabilities or obligations of Merchant or Customer arising from, relating to or in connection with any Purchased Receivable(s) or other Receivable, and Merchant agrees that all such liabilities or obligations are and shall remain solely with Merchant or Customer, as applicable.

Section 2.03                 Purchase Price Adjustments. In the event a Customer asserts any offset, defense, claim, counterclaim, dispute, deduction, discount, allowance, right of return, right of recoupment, or warranty claim relating to any Purchased Receivable arising from or relating to Merchant’s breach of any covenant, representation or warranty and resulting in the Customer paying less than the full amount of the Purchased Receivable (each, an “Adjustment”), Willa may, in its sole discretion, request that Merchant pay Willa the amount of such Adjustment.  Merchant shall pay Willa the amount of each Adjustment within five (5) Business Days of receiving such request.

Section 2.04                 Further Assurances. Merchant will take all actions and execute and deliver such documentation as may be requested by Willa to preserve and protect its right, title, and interest in and to any Purchased Receivable.

Section 2.05                 No Impairment. Merchant will not take any action (including placing or allowing placement of a lien or security interest on any Purchased Receivable) or make any omission that has, individually or in the aggregate, an adverse effect on any Purchased Receivable or on Willa’s ability to collect on any Purchased Receivable.

Section 2.06                 Amounts Received. If Merchant or any employee, agent or representative of Merchant (other than Willa) receives any payment on any Receivable, or any payment on any Receivable is processed or deposited by or for Merchant into any account other than the Proceeds Account, then such funds shall be deem to be held in trust for Willa’s benefit.  Merchant shall notify Willa immediately of any such payment and shall remit or cause to be remitted the full amount of such payment as directed by Willa within one (1) Business Day of its receipt or deposit.  Merchant shall not in any way encourage or cause any Proceeds to be paid processed, settled or delivered to any person or account other than the Proceeds Account, and shall take all affirmative steps at its expense and as necessary or appropriate to prevent any such occurrence from recurring.  

Section 2.07                 Repurchase of Purchased Receivables.  In the case of a Repurchase Event arising from, relating to or in connection with a Purchased Receivable(s), Merchant shall repurchase such Purchased Receivable(s) at the Repurchase Price from Willa on a date mutually agreed by the parties, or in the absence of such agreement on the date selected by Willa and occurring within five (5) Business Days after Willa’s provision of notice to Merchant of Willa’s demand for such repurchase.  The “Repurchase Price” means, with respect to a Purchased Receivable to be repurchased, the Purchase Price paid by Willa for such Purchased Receivable minus any amount(s) received and retained by Willa from the applicable Customer in payment towards such Purchased Receivable.  The Repurchase Price shall be determined by Willa as of the day before the date selected by the parties for the closing date of the repurchase transaction, following the completion of all Willa system file maintenance for that day (the “Cut-Off Date”).  For purposes of this Agreement, a “Repurchase Event” means the occurrence of any breach of any of Merchant’s representations, warranties, covenants or agreements in this Agreement directly or indirectly relating to any Purchased Receivable, in response to which Willa determines in its sole discretion to demand the repurchase of such Purchased Receivable by Merchant.  For the avoidance of doubt, the failure of a Customer to pay a Receivable or Purchased Receivable does not constitute a breach of any of Merchant’s representations, warranties, covenants or agreements in this Agreement.  

In connection with each repurchase by Merchant of a Purchased Receivable, the parties shall execute and deliver such documentation as the other party may reasonably request to memorialize the repurchase by Merchant of such Purchased Receivable.  Following any such repurchase, (a) Willa will continue to service the Receivable(s) in the same manner as the other Receivables it then services for Merchant; and (b) any payment received by Willa for such Receivable after the Cut-off Date from any third party shall be held for the benefit of Merchant and remitted to the Proceeds Account promptly following final and indefeasible receipt of such funds.      

For the avoidance of doubt, Merchant has no right to demand or to require the purchase by any party of any Purchased Receivable from Willa under any circumstances.

Section 2.08                 Intent of the Parties.  

(a)        The parties expressly intend that each conveyance of Merchant’s right, title and interest in and to the Purchased Receivables in accordance with the terms of this Agreement will constitute an absolute sale, assignment and transfer of ownership of all of Merchant’s right, title and interest in and to the Purchased Receivables, conveying good title free and clear of any liens, claims, encumbrances or rights of others, from Merchant to Willa.  It is the express intention of the parties that the arrangements with respect to the Purchased Receivables will constitute a purchase and sale of such Purchased Receivables and not a loan, financing, extension of credit or security arrangement of any type from Willa to Merchant, including for tax and accounting purposes.  Merchant and Willa will treat Willa’s purchase of any Purchased Receivable as a sale for tax, accounting, and financial reporting purposes, their respective books and records will be marked to reflect the sale of the Purchased Receivable to Willa, and Willa may file such financing statement(s) under the Uniform Commercial Code to reflect its purchase of the Purchased Receivable at any time in its discretion.  However, if it were to be determined that the transactions evidenced hereby constitute a loan and not a purchase and sale, it is the intention of the parties that this Agreement will constitute a security agreement under Applicable Law, and that Merchant will be deemed to have granted, and Merchant does hereby grant, to Willa a first priority perfected security interest in all of Merchant’s right, title and interest, whether now owned or hereafter acquired, in, to and under the Purchased Receivables to secure the obligations of Merchant under this Agreement, and Merchant authorizes Willa to file appropriate financing statements pursuant to the Uniform Commercial Code to perfect such security interest for the purposes hereof.  Each party agrees not to take any action with respect to the Purchased Receivables inconsistent with the foregoing intention.

Section 2.09                 The parties intend that in no event shall any of the fees, discounts or amounts received or realized by Willa be deemed as an interest payment from Merchant hereunder.  In the event that a court or arbitrator determines that Willa has charged or received interest hereunder, and that said amount is in excess of the highest permissible applicable rate, the rate adjudged to be in effect hereunder shall automatically be reduced to the maximum rate permitted by Applicable Law and Willa shall promptly refund to or credit Merchant for the amount of any interest received by Willa in excess of the maximum lawful rate, it being intended that Merchant not pay or contract to pay and that Willa not receive or contract to receive, directly or indirectly in any manner whatsoever, interest in excess of the maximum amount which may be paid by Merchant under Applicable Law.  

Section 2.10                 Purchaser Acknowledgements. The transactions contemplated by this Agreement do not involve, nor are they intended in any way to constitute, the sale of a "security" or "securities" within the meaning of any Applicable Law, and none of the representations, warranties, or agreements of Willa will create any inference that the transactions involve any "security" or "securities".  Willa acknowledges, understands, and agrees that the acquisition of the Purchase Receivables may involve a high degree of risk and are suitable only for persons or entities of substantial financial means who have no need for liquidity and who can hold the Purchased Receivables indefinitely or bear the partial or entire loss of their value.  Willa is financially sound, not under undue financial duress, and has sufficient liquidity to make the purchases contemplated under this Agreement.    

Article III.     SERVICING OF RECEIVABLES

Section 3.01                 Appointment as Third-Party Servicer.  

(a)        Subject to the terms and conditions of this Agreement, Merchant hereby retains Willa to act as its agent as a third-party servicer for the Receivables for which Merchant requests Willa’s Services from time to time.  Willa hereby agrees to perform the Services for such Receivables on the terms and conditions set forth herein, subject to the Standard Operating Procedures.  Merchant agrees to provide Willa and its Willa Subcontractors with such assistance in the servicing, collection and administration of any Receivable as may be requested by Willa from time to time.  For the avoidance of doubt, the parties acknowledge and agree that the receipt of funds by Willa from or at the direction of a Customer satisfies (in whole or in part, as applicable) the obligation of such Customer to Merchant underlying a Receivable.  

(b)       All Receivables for which Merchant requests Willa’s assistance will be serviced, collected and administered by Willa or its Willa Subcontractors, with all rights to take such action or pursue such collection strategy(ies) as Willa deems appropriate, including settling or changing the terms of the Receivables in its sole discretion.  Notwithstanding any other provision of this Agreement, Willa may determine at any time to cease or to suspend, temporarily or permanently, servicing or collection activity with respect to any Receivable at any time and for any reason or no reason.

Section 3.02                 Standard of Performance.  In performing the Services hereunder, Willa will exercise a degree of skill and care consistent with then-current industry standards and practices.  Willa shall (a) timely perform all of its obligations under this Agreement; and (b) administer the Receivables in material compliance with Applicable Law and the Standard Operating Procedures.  Notwithstanding the foregoing, Merchant and Willa agree that Merchant, and not Willa, is solely responsible for ensuring or determining that the circumstances of Merchant’s business which generate a Receivable comply with Applicable Law, or have resulted in a legally enforceable debt of the Customer.

Section 3.03                 Willa Subcontracting.  Willa may use any Willa Subcontractors in the performance of any of Willa’s obligations and duties under this Agreement.  Willa shall be responsible for the acts or omissions of all its Willa Subcontractors to the same extent as if such acts or omissions were taken or omitted by Willa directly.  

Section 3.04                 Internal Control Environment. For so long as Willa is providing Services to Merchant pursuant to this Agreement, Willa shall perform reasonable due diligence to ensure that the internal control environment of Willa, and as applicable, its Willa Subcontractors is/are suitably designed and operating effectively, and to provide reasonable assurance regarding the security and integrity of the Services provided under this Agreement.

Section 3.05                 Limited Power of Attorney.  Merchant hereby irrevocably appoints and empowers Willa as Merchant’s true and lawful attorney-in-fact, with full power of substitution, to endorse and promptly deposit on Merchant’s behalf any checks or other instruments made payable to Merchant and submitted by a Customer as payment on any Receivable, and to take any other action relating the Receivables in Merchant’s name and place that Willa deems advisable and consistent with the terms of this Agreement.  This power of attorney shall be deemed to be a right coupled with an interest.  

Section 3.06                 Servicing Fees and Collection Cost Invoicing.

(a)        Subject to the other terms of this Agreement, following final and indefeasible receipt by Willa of a payment of Proceeds on a given Receivable (other than a Purchased Receivable), Willa shall make available to Merchant the amount of such Proceeds, minus an amount equal to the percentage thereof specified by Willa and agreed upon by Merchant over the Website or App at the time Merchant requested Willa to invoice such Receivable to a Customer, as compensation to Willa for performing the Services (each, a “Servicing Fee”).  

(b)        On a monthly basis, Willa will invoice Merchant for the out of pocket costs and expenses incurred or accrued by Willa in performing collection services with respect to the Receivables for the previous month (and on a pro rata basis for those Receivables held in part by Willa as a Purchased Receivable, based on the relative percentage interest therein retained by Merchant).  Merchant agrees to pay such invoiced amounts within thirty (30) days of its receipt of such monthly invoice.  

(c)        Without limitation of the foregoing, Merchant hereby consents to Willa withdrawing or offsetting the amount of such invoiced collection costs from all amounts otherwise due to Merchant from Willa, whether from the Proceeds Account, Merchant’s Willa Account or otherwise.

Article IV.     ADDITIONAL SERVICING RIGHTS AND REQUIREMENTS

Section 4.01                 Books and Records.  At all times during the Term and during any transition period and for a period of one (1) year thereafter, and as otherwise required under this Agreement, Willa shall maintain materially complete and accurate files and records pertaining to the Services performed and information held with respect to each Receivable, and of all business activities and operations conducted by Willa in connection with its performance under this Agreement.  All such files and records for Receivables which are not purchased by Willa are and shall remain the property of Merchant.  All such files and records for Purchased Receivables held by Willa are and shall remain the property of Willa.

Section 4.02                 Merchant Retention of Files.  All Customer contracts, correspondence or other files of Merchant relating to the Receivables will be retained and held in the possession or control of Merchant, and complete and accurate copies of which shall be provided by Merchant at Merchant’s expense to Willa promptly (but in no event later than four (4) Business Days), following Merchant’s receipt of a written request from Willa for any such documentation or records.  Willa makes no representation, warranty, or other assurance as to the completeness or accuracy of the information or data relating to the Receivables as provided by Merchant to Willa.  

Section 4.03                 Audit/Additional Requirements.

(a)     For so long as Willa is required under this Agreement to retain information pertaining to this Agreement or the Services provided hereunder, and for a period of one (1) year thereafter, Willa, any third party auditor designated by Willa, and any Regulatory Authority of Willa shall have the right, at Willa’s expense and with five (5) Business Days’ advance written notice to Merchant, and during Merchant’s regular business hours, to visit Merchant’s facilities, to interview Merchant personnel, to request and obtain information regarding Merchant’s business and records, and/or to audit, inspect and copy, data, records, reports, documentation and other information of Merchant or its subcontractors, in order to verify the performance and compliance by Merchant or its subcontractors with Merchant’s obligations under this Agreement or its contracts with Customers, and/or Merchant’s compliance with Applicable Law.

(b)     With respect to the information requests and the audits described in Section 4.03(a), and without limitation of any of the rights afforded to Willa and its auditors thereunder, Merchant and Willa agree to work together in good faith to seek to conduct any such audit(s) in a manner so as not to materially interfere unnecessarily with Merchant’s business operations.  Merchant will, and will cause each applicable Merchant Affiliate to, co-operate with and provide to Willa, or Will’s audit representatives such reasonable assistance as they request in order to exercise the rights set out in this Section 4.03.  Additionally, for any Merchant subcontractor(s), if applicable, during the term of Merchant’s agreement with such subcontractor and for two (2) years following the termination of any agreement with such subcontractor, Merchant will cause each Merchant subcontractor(s) to co-operate with and provide to Willa or Willa’s audit representatives such reasonable assistance and access as they may request in order to exercise the rights set out in this Section 4.03.

(c)     Merchant will promptly give notice to Willa of all claims made against Merchant, or other events affecting Merchant or any Merchant subcontractor that Merchant reasonably believes may have a material adverse effect on: (i) the ability of Merchant to comply with any of its obligations under this Agreement, (ii) Willa’s ability to provide the Services, or to collect upon any of the Receivables or Purchased Receivables; or (iii) Willa’s or Merchant’s business reputation.

(d)     Remediation:

(i)                        For any review or audit conducted pursuant to, or as contemplated in this Agreement, if such review or audit reveals any error, deficiency or other failure to perform in accordance with the terms of this Agreement on the part of Merchant, Merchant shall as soon as reasonably possible following the date on which Merchant becomes aware of such error, deficiency or other failure to perform and, in any event, no later than thirty (30) days following such date, deliver to Willa a corrective action plan that will be subject to approval by Willa; and (ii) after receipt of Willa’s approval, execute the approved plan in accordance with its terms.

(ii)                      Merchant agrees to cooperate with Willa and to respond to and fulfill any reasonable follow-up questions or requests to confirm that Merchant's remediation obligations under this Section have been fulfilled.

(e)     Merchant waives, to the maximum extent permitted by Applicable Law, any claim for damages against any of Willa, its Affiliates, and any of their respective officers, directors, employees or representatives, relating to any investigation undertaken by or on behalf of Willa, and/or the disclosure of information in connection therewith.

Section 4.04                 Receivable Data Errors.  Merchant hereby authorizes and directs Willa to perform the Services with respect to the Receivables in accordance with the information and data relating to the Receivables as provided by Merchant to Willa (collectively, the “Merchant Provided Contract Data”).  Willa may accept and rely on the Merchant Provided Contract Data without audit or any other examination thereof, and Willa shall have no duty, responsibility, obligation, or liability for acting in reliance on the accuracy of the Merchant Provided Contract Data.  If Merchant or Willa becomes aware of any errors, inaccuracies, or material omissions in the Merchant Provided Contract Data (collectively, “Data Errors”), such party shall notify the other party of the existence of such Data Errors, and Merchant shall be responsible for providing any additional or corrected information with respect to the Receivables needed to resolve such Data Errors.  Willa shall make commercially reasonable efforts to update its file records following receipt from Merchant of such additional or corrected information.

Section 4.05                 Receivable Payments.  Willa and Merchant acknowledge and agree that: (a) except as otherwise provided in this Agreement, Willa has no interest in any payments or other recoveries made or obtained with respect to a Receivable and received by Willa (the “Proceeds”) into any account established by Willa in its name with a third party financial institution to which such Receivable payments shall be directed (the “Proceeds Account”), other than those payments or other recoveries made or obtained in connection with a Purchased Receivable; and (b) Willa is acting as a collection agent and custodian for and on behalf of Merchant with respect to Proceeds relating to a Receivable other than a Purchased Receivable, and Willa shall not remove or transfer any such Proceeds, except as contemplated by this Agreement or with the prior consent of Merchant, such consent not to be unreasonably withheld, conditioned or delayed.  

(a)        Notwithstanding the foregoing, Willa may withdraw and remove from the Proceeds Account for its own account Proceeds relating to the Purchased Receivables and/or to amounts in payment of any other amount(s) as may be then due Willa from Merchant, at any time in Willa’s sole discretion.  In addition, with respect to a Receivable which is owned in part by Willa as a Purchased Receivable, Willa shall be entitled to receive from the Proceeds Account all Proceeds obtained in payment towards such Receivable until the total outstanding balance due of such Purchased Receivable has been received by Willa, prior to any portion of the payment Proceeds being paid to Merchant’s Willa Account for its portion of the applicable Receivable.

(b)        The parties agree that the allocation of Proceeds payments to the balance of its applicable Receivable shall be determined by Willa in its sole discretion.

Section 4.06                 Confidentiality Obligations.  

            (a)     Unless otherwise agreed to in writing by the discloser or as otherwise provided by this Agreement, the recipient of Confidential Information must:

(i)                Keep such Confidential Information of the discloser confidential and secure, and not disclose Confidential Information to any third party other than attorneys, accountants, external auditors, agents, subcontractors, or service providers who need access to the Confidential Information in the course of their engagement or performance of services for the recipient related to this Agreement (“Recipient Parties”), or copy or permit the copying of Confidential Information without the prior approval of the discloser;

(ii)              Use Confidential Information only in connection with the rights granted and obligations imposed under this Agreement and not for any other purpose, or in any manner detrimental to the discloser or in violation of Applicable Law applicable to either party;

(iii)             Limit access to Confidential Information only to those of its employees and Recipient Parties who have a need to know the Confidential Information in connection with this Agreement; and

(iv)              Ensure that those of its employees and Recipient Parties who have access to Confidential Information comply with the requirements of this Section 4.06.

All rights in and to the Confidential Information of a discloser shall remain with the discloser.  Notwithstanding the foregoing, Willa may retain and use Merchant’s name, email address, and other information, materials, data, content, or documents that Merchant has provided Willa or that Willa has obtained or produced following termination for any purpose, unless prohibited by Applicable Law.

(b)       Exceptions.  The obligations in Section 4.06(a) will not apply to any Confidential Information that:

(i)                Is required to be disclosed by Applicable Law, subpoena, civil investigative demand or similar process; provided, the recipient must, if legally permissible, (A) notify the other party sufficiently before the disclosure is made (including identification of information or materials subject to such requirement), so as to allow the other party a reasonable opportunity to seek a protective order or other appropriate relief with respect to such disclosure if the other party so desires, (B) reasonably assist the other party (if the other party so desires and at the other party’s expense) in obtaining a protective order or other appropriate relief, including an order requiring that the Confidential Information being disclosed be used only for the purposes for which disclosure is required, and (C) reasonably cooperate with the other party in its efforts to protect the confidentiality of the Confidential Information required to be disclosed;

(ii)              Is necessary to be disclosed for purposes of enforcing the terms of this Agreement (but only to the extent required for that purpose); or

(iii)                    Has been requested in writing by any Regulatory Authority with supervisory or other oversight responsibilities for the recipient.

In the event of a dispute between the parties regarding the exclusions set forth in this Section, the burden of proof establishing the applicability of the relevant exception or exclusion will be on the recipient.  The recipient shall be liable to the discloser for any breach of this Section by any of recipient’s Recipient Parties.  

 (c)       Return or Destruction of Confidential Information.  When this Agreement terminates, and subject to the parties’ respective compliance with and completion of the transition/conversion obligations under this Agreement, and solely upon the written request or approval of Willa, Merchant will return or destroy all Confidential Information in its possession or control belonging to Willa, regardless of the media in which such Confidential Information is contained or found, in accordance with reasonable destruction procedures and protocols commensurate with the type of Confidential Information being destroyed, unless otherwise instructed by Willa or unless the parties agree that return or destruction is not feasible.  Merchant will ensure that all such destruction by Merchant of Confidential Information of Willa is done in such a fashion that the destroyed information cannot be reconstructed, e.g., by shredding or pulping paper or scrubbing electronic devices using the latest commercially available technology.  If return or destruction is not feasible as mutually determined by the parties, Merchant will maintain the Confidential Information in compliance with the requirements of this Section 4.06 and the Merchant’s reasonable record retention policies.  Upon the request of Willa, an officer of Merchant shall certify in writing as to the completion of the return or destruction of all Confidential Information of Willa formerly under the possession and control of Merchant or any of its Recipient Parties.

(d)       Equitable Relief.  Each of the parties acknowledges that the Confidential Information of the other party is a valuable, special, and unique asset of such other party.

(e)     Confidentiality of Agreement.  The parties will each keep confidential and not disclose this Agreement or any of the terms and conditions of this Agreement to any third party other than a party’s attorneys, accountants, external auditors, Regulatory Authorities or potential or actual acquirers or investors or professional advisors who have signed a non-disclosure agreement with provisions that are no less restrictive than those set forth in Section 4.06, or who are subject to equivalent professional responsibilities.  The requirements of this Section 4.06(e) are subject to the exceptions set forth in Section 4.06(b).

Section 4.07           Information From Merchant.  Merchant agrees to obtain and provide at Merchant’s expense to Willa in writing any information, authorization or consent as Willa may reasonably request from time to time to assist Willa in exercising any of Willa’s rights or fulfilling any of its obligations under this Agreement, including any Customer information, authorization or consent requested by Willa in connection with Willa’s evaluation of such Customer in connection with the potential purchase by Willa of a Receivable(s) relating to such Customer.

Article V.        WEBSITE AND MOBILE DEVICE APPLICATION

Section 5.01                 Mobile Device Application.

(a)        Merchant shall adhere to and fulfill any requirements of our mobile device applications, including the App and any updates thereof, and pay any required fees.

(b)       Merchant are also be solely responsible for compliance with the terms of Merchant’s agreement(s) with Merchant’s mobile device and telecommunications providers.

(c)        Willa may provide Merchant with alerts related to Merchant’s Willa Account.  Merchant authorizes Willa and its Willa Subcontractors to send alerts by text message to Merchant’s mobile phone at the number(s) Merchant has provided Willa.

(d)       Any change to Merchant’s mobile phone number will change Willa’s ability to provide Merchant with alerts.  Merchant agrees to notify Willa immediately of any change to Merchant’s mobile phone number.

(e)        Certain alert delays may be outside Willa’s control.

(f)        Willa is not responsible for the products and services provided by Merchant’s mobile device or telecommunications provider.

Section 5.02                 License.

(a)         Willa shall have the right to collect and analyze data and other information relating to Willa’s services and related systems and technologies, and Willa is free (during and after the Term) and without any payment to:

 

                               (i)     use such information and data to improve Willa’s products and services and for other development, diagnostic and corrective purposes in connection with Willa’s business, and

 

                             (ii)     disclose such data to third parties solely in an aggregated or other de-identified form in connection with Willa’s business.

Section 5.03                 Willa’s Proprietary Rights.  The information and materials made available through or related to Willa’s Website, App, products or services are and will remain Willa’s property or the property of Willa’s licensors and suppliers, and are protected by copyright, trademark, patent, and/or other proprietary rights and laws.  Merchant agrees not to reproduce, modify, rent, lease, loan, sell, distribute, or create derivative works based on any part of Willa’s Website, App, products or services.  Willa’s trade names, trademarks, and service marks include “Willa”, “Willa Pay” and any associated logos.  No license or right is granted to use any of Willa’s trade names, trademarks, or service marks.

Section 5.04                 Transaction Information from Third Party Sites.

(a)        Willa may use transaction data from Merchant’s bank and other financial accounts to provide Willa’s products and services.  Merchant consents to and directs Willa and its Willa Subcontractors to obtain and use such transaction data, and information from any other third-party providers with whom Merchant has bank or other accounts, including any credit bureau(s) (collectively, the “Transaction Information”), as deemed appropriate by Willa.  Willa or its Willa Subcontractor will work with such providers to obtain such Transaction Information.  Merchant agrees that Willa and the Willa Subcontractors may use Merchant’s data, including its Transaction Information, Customer information and Receivables data, so Willa may provide their services to Merchant, and for their other respective business purposes.  Merchant agrees to ensure that it has made all appropriate disclosure and obtained any necessary or appropriate consents from each of its Customers, so as to permit the uses permitted to Willa by Merchant in this Agreement.  

(b)        Willa and our Willa Subcontractors will not provide Transaction Information to Merchant in the form received from the third-party providers, but certain details of the Transaction Information may be provided to Merchant. Willa does not review Transaction Information for accuracy or completeness.  Willa has no liability for any actions or inactions on the part of any information provider.  Willa and its Willa Subcontractors are not responsible for the Transaction Information or third-party products and services, and make no warranties, including implied warranties of merchantability and fitness for a particular purpose, with respect to Transaction Information or third-party products or services.  Willa and its Willa Subcontractors are not responsible for delays in obtaining Transaction Information or the accuracy, completeness, storage, or loss of Transaction Information, personalization settings, or service interruptions.  Transaction Information may only be current at the time accessed and is provided on an “as is” and “as available” basis from providers.

(c)        While using the Website, App, products or Services, Merchant will comply with Applicable Law.  In addition, Merchant will not:

 

(i)                Post, transmit, or otherwise make available:

 

1.     Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as “hacking,” “cracking,” or “phreaking;”

2.     Any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;

3.     Any unsolicited or unauthorized advertising, promotional material, “junk mail,” “spam,” “chain letter,” “pyramid scheme” or investment opportunity, or any other form of solicitation; or

4.     Any non-public information about any person without the proper authorization to do so.

(ii)              Use or permit the use of our Services for any fraudulent or unlawful purpose, including to:

 

1.   Obtain funds from Willa or a Customer fraudulently or otherwise illegally;

2.     Violate the legal rights of others, including others’ privacy rights or rights of publicity, or harvest or collect personally identifiable information about other users;

3.     Impersonate any person;

4.     Interfere with or disrupt the operation of our products or Services or the servers or networks used to make our products or Services available;

5.     Restrict or inhibit any other person from using our products or Services;

6.     Reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purpose, any portion of, use of, or access to our Services;

7.     Modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of our Website, App or other mobile applications, products or Services;

8.     Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or in any way gather our content or reproduce or circumvent our navigational structure or presentation; or

9.     Do anything in connection with our Website, App or other mobile applications, products or Services not expressly authorized by this Agreement.

Article VI.     REPRESENTATIONS AND WARRANTIES

Section 6.01           Mutual Representations and Warranties. On a continuing basis throughout the Term, each of Willa and Merchant represents and warrants to the other party that:

(a)        It is a sole proprietorship or other entity duly organized or formed, validly existing and in good standing under the laws of the state in which it is organized or formed;

(b)       It has all necessary power and authority to enter into this Agreement and to perform its obligations under this Agreement;

(c)        The negotiation, formation, execution and delivery of this Agreement and the consummation of the transactions contemplated in this Agreement have been authorized by all necessary organizational actions on its part;

(d)       It has no legal, contractual, or other material obligations that conflict in any material respect with, or are inconsistent in any material respect with, its performance of its obligations under this Agreement;

(e)        This Agreement constitutes a legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms;

(f)        No consent, approval, or authorization from any third party is required in connection with the negotiation, execution, delivery and performance of this Agreement, except such as have been obtained and are in full force and effect;

(g)       The individuals establishing or using the Willa Account, transacting business with the other party or utilizing Willa’s products and services are authorized by Merchant or Willa, as applicable to do so; and

(h)       The execution, delivery and performance of this Agreement by such party will not constitute a violation of any Applicable Law applicable to such party.

            Section 6.02           Additional Representations and Warranties of Merchant.  On a continuing basis throughout the Term, Merchant further represents and warrants that:

(a)        Merchant is entering into this Agreement for business purposes and not for personal, family, household or other consumer purposes;

(b)       Merchant conducts and shall conduct its business in accordance with, and not in violation of, any Applicable Law applicable to such business or the provision thereof;

(c)        Each of Merchant, its Affiliates and each of their respective employees, officers, directors, subcontractors, representatives and agents have all licenses, registrations and authorizations necessary or appropriate to own, operate and conduct its and their businesses;

(d)       Any materials, data, information, content or documents Merchant directly or indirectly provides to Willa (including information with respect to the payment or other contractual terms and conditions of each Purchased Receivable or otherwise), are true, correct and complete in all respects, and contain no materially false or misleading statement;

(e)        Merchant shall not materially change the goods or services it sells, or otherwise materially change the nature of its business, without first notifying Willa and obtaining the prior written consent of Willa.  Merchant has no present intention of closing its business or ceasing to operate its business, either permanently or temporarily.  Merchant is solvent, and is not contemplating bankruptcy or insolvency proceedings; and

(f)        With respect to each Purchased Receivable, Merchant makes the following representations and warranties as of the date each such Receivable is to become a Purchased Receivable:

                               (i)     Merchant holds good and marketable legal and equitable title to the Receivable, free and clear of any and all liens, claims, pledges or encumbrances of any kind or nature, or any other rights and interests that may be inconsistent with the transactions contemplated with, or adverse to the interests of Willa;

                             (ii)     Merchant has not sold, transferred, conveyed, pledged, assigned, or encumbered the Receivable to any other person;

                           (iii)     No third party has any right, interest, or claim in or to the Receivable;

                            (iv)     The Receivable represents the valid, enforceable, legal, and binding obligation of the respective Customer;

                             (v)     The Receivable is not in dispute, and is presently and unconditionally owing to Merchant by Customer;

                            (vi)     The Receivable is not past due, and represents a bona fide amount owed by the Customer created from Merchant’s actual and timely performance or provision of goods, property, or services to the Customer in the ordinary course of Merchant’s business;

                          (vii)     The Receivable is not subject to any claim, offset, defense, or counterclaim of any kind;

                        (viii)     No agreement has been made under which the Customer may claim any deduction or discount against the Receivable;

                            (ix)     The Customer is liable for the full amount of the Receivable and has not objected to its payment or to the quality or quantity of the goods, property, and services performed or provided;

                             (x)     The Receivable has not been modified, dismissed, settled, or paid;

                            (xi)     There has been no error, misrepresentation, negligent act or omission, fraud, or violation of Applicable Law on the part of any person with respect to the Receivable, its creation or its underlying goods, property or services; and

                          (xii)     Merchant has no knowledge that the Customer (1) has filed for bankruptcy, insolvency or receivership, or made an assignment for the benefit of creditors, (2) is considering pursuing any of the foregoing, (3) has had or consented to any such filing made or similar action brought against them, or (4) has experienced any difficulty paying amounts due others in full and when due.

Article VII.   TAXES

Section 7.01                 Sales, Use and Personal Property Taxes.  Willa’s Servicing Fee, if any, does not include sales, use, or personal property taxes relating to the Receivables (or any underlying assets related thereto), and Willa shall not be responsible for advancing any funds to pay any such taxes.

Article VIII. INDEMNIFICATION AND LIMITATION OF LIABILITY

Section 8.01           Merchant Indemnification.  Merchant agrees to defend, indemnify, and hold Willa and all of its Affiliates, and each of their respective officers, directors, employees, representatives, subcontractors and agents, harmless from and against any and all claims, causes of action, lawsuits, arbitrations or other proceedings, costs, liabilities, expenses, damages, losses, penalties, fines, forfeitures, amounts paid in settlement, judgments, fees (including reasonable attorneys’ and legal experts’ fees and related investigations, accounting and litigation costs, fees and expenses) which result or arise from:

(a)        any act or omission by or on behalf of Merchant, or any of its officers, directors, employees, representatives, subcontractors or agents (other than Willa) which is in violation of or not permitted by this Agreement, or Merchant’s agreement with a Customer;

(b)        any act or omission by or on behalf of Merchant, or any of its officers, directors, employees, representatives, subcontractors or agents (other than Willa) arising out of or alleged to have arisen out of or in connection with the conduct of Merchant’s business, including claims for damages (including damages for personal injury or death) relating to or arising from Merchant products liability or the provision by Merchant, or any of its officers, directors, employees, representatives, subcontractors or agents (other than Willa) of Merchant’s services; or

(c)     Willa’s reliance on the accuracy of the Merchant Provided Contract Data in providing Services for the Receivables; or

(d)     any act or omission constituting negligence or willful misconduct by an officer, director, agent, representative, subcontractor or employee of Merchant (other than Willa any Willa Subcontractor and/or any of their respective officers, directors, employees, representatives, subcontractors, Affiliates and agents); or

(e)     any act or omission by Willa, Willa Subcontractor and/or any of their respective officers, directors, employees, representatives, subcontractors, Affiliates and agents which act or omission was not in accordance with the Standard Operating Procedures and was directed by Merchant, provided that the Services were rendered in accordance with Merchant’s request; or

(f)      Willa responding to any third-party discovery requests made to Willa, or subpoenas or other records demands served on Willa by a third party, seeking information (i) concerning this Agreement, the Receivables or the Services, or (ii) otherwise involving Merchant’s business activity, transactions, customers or records, in accordance with Section 6.06.

Section 8.02           Notice, Defense and Resolution of Indemnification Claims.

(a)     If a party receives notice of any claim for which indemnification may be available under this Agreement, the party must promptly notify the other party in writing of the claim (as applicable), including, if possible, the amount or estimate of the amount of liability arising from it.  This notice must be given with reasonably sufficient promptness so that the rights of Merchant as indemnifying party are not materially prejudiced.

(c)        Within thirty (30) days (or within a shorter time period if necessary to avoid material prejudice), Merchant must notify Willa of its intentions with respect to the notice.

(d)        If Merchant elects to defend the claim, Willa must cooperate with the Merchant in its investigation and defense thereof (which will be conducted at Merchant’s sole expense).  The indemnifying party will have the right to control the defense, select counsel, and direct the course of resolution, including settlement (but only if the settlement requires or includes no admission of liability by the indemnified party(ies), does not involve more than the payment of money, and grants the indemnified party(ies) a full and unconditional release from all liability with respect to the claim).  In addition to the defense provided by Merchant, Willa may elect to retain its own counsel, but Merchant will not be responsible for any fees or expenses of such counsel.

(e)        If Merchant as indemnifying party, despite its obligations under this Agreement, declines to defend the claim, then Willa will have the sole right to control the defense, select counsel, and direct the course of resolution, including settlement.  If Merchant is obligated by judgment or settlement to indemnify the other party(ies), then Merchant must also reimburse the other party(ies) for all costs and expenses related to or arising from such other party’s or parties’ defense, as applicable, including all investigation and attorneys’ fees and expenses.

Section 8.03           Limitation of Liability.  The parties agree that Willa’s liability to Merchant or any other person for damages, whether arising due to a breach of this Agreement, tortious acts (including negligence) or under any other theory, shall be limited to Merchant’s actual direct, provable damages in an amount not to exceed: US$100,000 (one hundred thousand dollars).  The parties acknowledge that (i) fees and other charges contemplated under this Agreement are based on the limitation of liability specified herein and (ii) such fees and other charges would be higher if this limited liability provision was not included or was unenforceable.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH AS LOSS OF USE, REVENUE OR PROFIT, EXCEPT FOR DAMAGES ARISING OUT OF A PARTY’S WILLFUL OR INTENTIONAL MISCONDUCT, RECKLESSNESS OR GROSS NEGLIGENCE IN CONNECTION WITH THIS AGREEMENT.  Willa shall not be liable to any tax jurisdiction in regard to any tax compliance.  All claims made under this Article VIII for indemnification must be asserted with specificity in writing to the other party no later than two (2) years after the termination of this Agreement, or such claims shall be forever waived and released.

Article IX.     TERM AND TERMINATION

Section 9.01                 Term.  This Agreement commenced on the date you consented to and established your ability to access the Services on the Website or the App, and shall continue in full force and effect until terminated by either party as provided herein (the “Term”).  Merchant may terminate this Agreement by providing notice by following the instructions provided on the Website or the App, and Willa may terminate this Agreement by providing notice to Merchant by e-mail or notification using the App (the date of such notice, the “Termination Date”).

Section 9.02                 ­Transition Period; Conversion.  

(a)        In the event of the occurrence of any termination event under this Agreement, Merchant shall within ten (10) days of such termination designate in writing to Willa another entity who shall act as a successor servicer in the place of Willa for the Receivables, other than the Receivables which are Purchased Receivables in whole or in part, the servicing of which Willa shall retain, subject to the other terms of this Agreement.  Such designation shall become effective on the date mutually agreed upon by Merchant and Willa in writing, subject to the other terms of this Agreement.  Merchant may require that Willa provide transition servicing for a period of up to one hundred eighty (180) days following the Termination Date of this Agreement.  Willa and Merchant shall work in good faith to create a plan for the accomplishment of the conversion of the Receivables (other than the Receivables which are Purchased Receivables in whole or in part) and related electronic files to Merchant’s successor servicer and its systems, and shall implement such plan; and further provided that Merchant has paid Willa all fees payable hereunder, if any, including those accruing during the transition period.  Willa shall continue to perform the Services until Willa and Merchant have successfully completed the conversion of the Receivables (other than the Receivables which are Purchased Receivables in whole or in part) and any related electronic files to Merchant’s successor servicer and its systems within the agreed-upon conversion plan timing, subject to the other terms of this Agreement, unless and to the extent compliance by Willa with such conversion plan would be prohibited by Applicable Law, or unless the fees payable to Willa hereunder are not timely paid.  

(b)        Merchant agrees to pay Willa for all direct and out of pocket costs incurred by or on behalf of Willa in providing the transition servicing and in preparing for and conducting the conversion of the applicable Receivables to a successor servicer as set forth or contemplated in Section 9.02(a) hereof.  Willa will invoice Merchant for such costs and Merchant agrees to pay such invoiced amounts within thirty (30) days of its receipt of such invoice.  

Section 9.03                 Access to and Use of a Willa Account.  

(a)        Willa may, in its sole discretion, limit or terminate Merchant’s access to or use of Merchant’s Willa Account and Willa’s products and services at any time and for any reason.

(b)       Upon termination of this Agreement, Merchant’s right to use its Willa Account and Willa’s products and services will immediately cease, subject to the other terms of this Agreement.  Any limitation or termination of Merchant’s access to or use of its Willa Account and/or Willa’s products and services may take effect without prior notice to Merchant.

(c)        No limitation or termination of Merchant’s access to or use of a Willa Account and/or Willa’s products and services will affect in any way Willa’s right to and in the Purchased Receivables.  

Article X.        MISCELLANEOUS

Section 10.01              Status of the Parties.  None of the provisions of this Agreement are intended to create, nor shall such provisions be deemed or construed to create, any relationship between the parties hereto other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement.  Except as expressly provided in this Agreement, neither party shall have any authority to incur debts or obligations or make and enter into contracts on behalf of the other party, nor shall either party have any authority to pledge the credit of or in any manner obligate the other party.  The parties are independent contractors to one another, and neither party is an employee, servant, joint venturer, partner of the other party.  The relationship between the parties is not that of lender and borrower.

Section 10.02              Financial Statements.  

(a)        Upon written request from Willa, Merchant agrees to provide to Willa Merchant’s annual financial statements consisting of a balance sheet, a statement of income and a statement of cash flows, all in accordance with GAAP; provided, if such audited annual financial statements for Merchant are not prepared, Merchant agrees to provide Willa Merchant’s compiled or unaudited annual financial statements, consisting of a balance sheet, income statement and a statement of cash flows, accompanied by a certificate executed by Merchant’s chief financial officer or chief accounting officer confirming that such financial statements were prepared in conformity with generally accepted accounting principles applied on a basis consistent with that of the preceding fiscal year and present fairly, in all material respects, Merchant’s financial condition as of such date and the results of its operations for the twelve (12) month period then ended.

(b)        Upon request from Willa, Merchant agrees to provide to Willa within forty-eight (48) hours of such request, bank statements, records and other information regarding Merchant’s payment card receipts and all checking and other depositary accounts of Merchant, and hereby authorizes Willa to contact any financial institution into which Proceeds may have been deposited, and to obtain therefrom Merchant account bank statements, records or other information therefrom regarding such accounts.  Merchant agrees that it will confirm for each such financial institution that Willa is authorized to obtain such information therefrom, and agrees not to revoke such authorization.

Section 10.03              Changes to this Agreement.  Willa can change, amend, modify or supplement this Agreement, including the charges, discounts and fees provided for herein, from time to time as permitted by applicable law. These changes could add or delete provisions relating to the nature, extent and enforcement of the rights and obligations you or Willa may have under this Agreement. Willa will notify you of any change by amending this Agreement on the Website, or such other method as Willa may choose or as may be required by applicable law.  You may not amend this Agreement without the prior written consent of Willa specific to such amendment.  

Section 10.04              Notices.  All notices and other communications to be provided by Merchant to Willa shall be effective upon confirmed delivery to help@willapay.com, or to such successor email address or other address as specified by Willa in writing to Merchant.  All notices and other communications to be provided by Willa to Merchant shall be effective upon delivery to the email address provided by Merchant or by using the App.

Section 10.05              Severability.  Subject to the provisions of the Arbitration Agreement, if one or more of the provisions of this Agreement shall be for any reason held invalid or unenforceable, such provisions shall be deemed severable from the remaining provisions of this Agreement and such invalidity or unenforceability shall in no way affect the validity or enforceability of such remaining provisions or the rights of the parties hereto. To the extent permitted by Applicable Law, the parties hereto waive any provision of law which renders any provision of this Agreement invalid or unenforceable in any respect.

Section 10.06              Third Party Beneficiaries.  Except as provided in this Agreement, the parties are entering into this Agreement solely for themselves and no other party.  There are no third party beneficiaries of this Agreement.   Notwithstanding the foregoing or any other provision hereof to the contrary, the parties recognize the third party beneficiary status of any Regulatory Authority as specified in Section 4.03 hereof.

Section 10.07              Recording of Certain Telephone and Other Communications.  You consent to and authorize Willa, any of its affiliates, or its representatives to monitor and/or record any of your telephone conversations and other electronic communications with any of our representatives for security, quality assurance, or other business purposes. Where you have provided a cellular phone number directly to Willa, you consent and agree to accept servicing calls and text messages to your cellular phone from Willa, including collection calls regarding amounts due to Willa. For any telephone or cellular phone calls/communications Willa may make to you, you consent and agree that those calls may be automatically dialed including prerecorded messages or texts.

Section 10.08              Force Majeure. Neither party shall be liable for any delay or failure to perform hereunder due to fire, flood or other extreme weather event; riot, protest or other civil unrest; strike or other labor unrest; freight embargo or other unavailability of resources; acts of God; pandemic; epidemic; acts of war or hostilities of any nature; terrorism or terroristic activity; the enactment, amendment or repeal of laws, emergency declarations or regulations of any government (whether federal, state, commonwealth, county or municipal), failures in or unavailability of public or private communication and/or data lines or systems, or any other cause beyond the reasonable control of the party affected (each, a “Force Majeure Event”).  A party relying on a Force Majeure Event to excuse its performance hereunder shall, as soon as reasonably possible, notify the other party in writing of the nature of the Force Majeure Event and the prospects for that party’s future performance and shall thereafter, while the Force Majeure Event continues, respond promptly and fully in writing to all reasonable requests for information from the other party relating to that event and those prospects.  Such party’s failure to perform will be excused for as long as (a) the Force Majeure Event persists; and (b) such party continues to use its best efforts to resume or re-establish performance as soon as practicable without additional delay.  

If a Force Majeure Event occurs, the other party will also be excused from timely performance of its obligations hereunder for so long as and to the extent such failure to perform or delay in performing is necessary as a result of the Force Majeure Event.

Section 10.09              Merger/Entire Agreement; Waiver.  The provisions of this Agreement will inure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.  This Agreement is the sole and complete statement of the obligations and rights of the parties, and supersedes all previous or contemporaneous oral or written understandings, agreements, negotiations and proposals relating thereto.  The failure of Willa to utilize or to insist on performance of any of the terms and conditions or requirements of this Agreement shall not be construed as a waiver of such terms, conditions requirements or of any subsequent breach by Merchant and shall not affect the right of Willa to enforce each and every term, condition or requirement hereof.  All rights, powers and remedies of Willa in connection with this Agreement may be exercised at any time by Willa at any time after the occurrence of a breach of this Agreement by Merchant, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided at law or in equity.

Section 10.10              Cooperation.  To the extent reasonably practicable, the parties hereto shall cooperate with and assist each other in carrying out their respective obligations hereunder, or to their respective Regulatory Authorities, and in connection therewith shall execute and deliver such documents and instruments, and shall take such action as may be necessary or appropriate in furtherance thereof.  This cooperation shall include each party providing the other party with information reasonably requested by the other party and relating to the Receivables within mutually agreed upon timelines, or which is reasonably necessary for Willa to provide the Services.

Section 10.11              Use of Marks/Announcements.

(a)        Neither party will use, or permit their respective employees, agents or subcontractors to use, the name or any registered trademarks, tradenames, servicemarks or logos of the other party (or any Affiliate of the other party) in any written or electronic format, unless such other party has consented to the use in writing.  In this regard, neither party will unreasonably withhold, delay or condition its consent.

(b)     Neither party shall issue any media release, public announcement or public disclosure, relating to this Agreement, unless such other party has consented to the issuance in writing, provided that nothing in this Section shall restrict any disclosure required by Applicable Law, or accounting requirements beyond the reasonable control of the releasing party.  Notwithstanding the foregoing, Merchant authorizes Willa to use Merchant’s name in a listing of clients and in advertising and marketing materials.

Section 10.12              Assignment.  Merchant shall not transfer or assign its rights, duties, liabilities or obligations under this Agreement without the prior written consent of Willa, which consent may be withheld in Willa’s sole discretion, and any such transfer or assignment by Merchant without such consent shall be null and void and of no legal effect.  Willa may assign, transfer or pledge any or all of its rights, duties, liabilities or obligations under this Agreement to a third party(ies) at any time without notice to Merchant and without Merchant’s consent.

Section 10.13              GOVERNING LAW; WAIVER OF JURY TRIAL.  THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF.  EACH PARTY HERETO WAIVES THE RIGHT TO TRIAL BY JURY IN ANY CLAIM, ACTION, SUIT, PROCEEDING, OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT.  THE PARTIES ACKNOWLEDGE THAT EACH MAKES THE WAIVER KNOWINGLY, WILLINGLY AND VOLUNTARILY AND WITHOUT DURESS. THIS JURY TRIAL WAIVER SHALL NOT AFFECT OR BE INTERPRETED AS MODIFYING THE ARBITRATION AGREEMENT TO WHICH THE PARTIES ARE SUBJECT, WHICH CONTAINS ITS OWN SEPARATE JURY TRIAL WAIVER.

Section 10.14              Class Action Waiver.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE ALL RIGHTS TO BRING CLAIM(S) AGAINST EACH OTHER RELATING TO THIS AGREEMENT AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN ANY OTHER REPRESENTATIVE ACTION OR CAPACITY.  THIS CLASS ACTION WAIVER SHALL NOT AFFECT OR BE INTERPRETED AS MODIFYING THE ARBITRATION PROVISION BELOW TO WHICH THE PARTIES ARE SUBJECT, WHICH CONTAINS ITS OWN SEPARATE CLASS ACTION WAIVER.

Section 10.15              Arbitration Provision.  This arbitration provision (the “Arbitration Agreement”) is an agreement between Merchant and Willa to arbitrate disputes.  The parties agree that once any party has elected to arbitrate a Dispute, binding arbitration is the exclusive method for resolving that Dispute.  To initiate arbitration, Merchant or Willa must give written notice of an election to arbitrate. This notice may be given after a lawsuit has been filed and may be given in papers or motions in the lawsuit, such as a motion to compel arbitration.  Even if all parties have opted to litigate a Dispute in court, Merchant or Willa may elect arbitration with respect to any Dispute made by a new party or any Dispute later asserted by a party in that or any related or unrelated lawsuit (including a Dispute initially asserted on an individual basis but modified to be asserted on a class, representative or multi-party basis).  Nothing in that litigation shall constitute a waiver of any rights under this Arbitration provision.

(a)        This Arbitration Agreement is intended to benefit Merchant and Willa, their parents, wholly or majority owned subsidiaries and other Affiliates; any predecessors, successors and assigns of these entities; and all officers, directors, employees, agents and representatives thereof.  This Arbitration Agreement is also intended to benefit any third party that provides products or services in connection with this Agreement and is named as a co-defendant in a Dispute by Merchant, Willa or any of the foregoing.

(b)       “Dispute” has the broadest possible meaning, and includes but is not limited to any and all disputes, claims or controversies, in law or in equity, between the parties arising out of or relating in any way to the Agreement, the Website or the App, any prior agreement Merchant entered into with Willa (as such agreement may be amended, modified, or supplemented from time to time, a "Prior Agreement"), the transactions this Agreement contemplates, any prior transaction under a Prior Agreement and the relationship between the parties.  “Dispute” include, without limitation: (a) any claims of breach of contract, tort, unlawful charges, misrepresentation, conversion, fraud, or unfair and deceptive trade practices; (b) any data breach or privacy claims; and (c) any claim of a violation of any local, state or federal statute, regulation, ordinance, guidance or rule. Notwithstanding the foregoing, “Dispute” does not include disputes concerning the validity, enforceability, arbitrability or scope of this Arbitration Agreement or any part thereof (including, without limitation, the Class Action Waiver below; all such disputes  must be decided by a court and not an arbitrator.  However, “Disputes” includes any dispute concerning the validity or enforceability of the Agreement as a whole; any such Dispute must be decided by the arbitrator, not a court.  “Disputes” also does not include any individual action brought by either party in small claims court or a state’s equivalent court, unless such action is transferred, removed or appealed to a different court.

(c)        At the request of Merchant or Willa, any Dispute shall be decided by binding arbitration before Merchant’s choice of the American Arbitration Association (the “AAA”) or any other arbitration organization Merchant chooses and that Willa approves of in writing (the “Arbitration Organization”).  The arbitration shall be conducted under the then-current rules for the Arbitration Organization.  Merchant can get a copy of the rules from the AAA by calling (1-800-778-7879) or visiting its website, www.adr.org. If the AAA is unable to serve and Merchant and Willa cannot agree on a replacement, a court with jurisdiction will appoint the arbitrator or Arbitration Organization, who must abide by the terms of this Arbitration Agreement.  The arbitration hearing shall be conducted by a single arbitrator in the federal district of the principal place of business of Merchant, unless otherwise agreed upon by the parties.

(d)       IMPORTANT WAIVERS: If Merchant or Willa elect to arbitrate a Dispute, Merchant and Willa both waive the right to: (1) HAVE A COURT OR JURY DECIDE THE DISPUTE; (2) PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, WHETHER AS A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE; (3) ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; OR (4) JOIN OR CONSOLIDATE DISPUTES WITH DISPUTES INVOLVING ANY OTHER PERSON OR ENTITY IN COURT OR IN ARBITRATION.  The waivers in subparts (2)-(4) above are called the “Class Action Waiver.” The arbitrator shall have no authority to conduct any arbitration inconsistent with the Class Action Waiver or to issue any relief that applies to any person or entity except Merchant or Willa individually.

(e)        The arbitrator shall be an attorney with at least ten (10) years of experience or a retired judge and shall be selected in accordance with the applicable rules of the Arbitration Organization.  The arbitration award shall be in writing, but without a supporting opinion unless such an opinion is requested by the any of the parties.  If Merchant elects arbitration first, Merchant will pay one half of any arbitration filing fee.  Willa will pay the rest of the filing fee, or the whole filing fee if Willa elects arbitration first or if the arbitrator determines that applicable law requires Willa to do so or that Merchant is unable to do so.  Willa will pay the arbitration costs and fees for the first day of arbitration, up to a maximum of eight hours.  Willa will also pay any fees and charges that the arbitrator determines that Willa must pay in order to assure that this Arbitration Agreement is enforceable.  The arbitrator shall decide who shall pay any additional costs and fees.  The arbitrator shall follow applicable substantive law to the extent consistent with the FAA, applicable statutes of limitation and applicable privilege rules.  The arbitrator shall be authorized to award all remedies permitted by applicable substantive law in an individual lawsuit, excluding punitive damages, but including, without limitation, compensatory, and statutory damages (subject to constitutional limits that would apply in court), declaratory, injunctive and other equitable relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim), and attorneys’ and experts’ fees and costs.

(f)        If any of the parties fail to arbitrate as required under this Arbitration Agreement, the party electing arbitration shall, unless prohibited by Applicable Law, be entitled to recover its/their attorneys’ and experts’ fees and costs incurred in compelling the other party to arbitrate the Dispute.

(g)       The parties acknowledge and agree that the Agreement involves interstate commerce and that the Federal Arbitration Act (9 U.S.C. §1 et seq.) (the “FAA”) shall govern any arbitration under this Arbitration Agreement.

(h)     If any part of this Arbitration Agreement conflicts with the terms of the Agreement, any other document or agreement between the parties or the rules of the Arbitration Organization, the terms of this Arbitration Agreement shall prevail.  If any portion of this Arbitration Agreement cannot be enforced, the rest of the Arbitration Agreement will continue to apply, except that: (A) if the Class Action Waiver is limited, voided or found unenforceable in a proceeding involving Merchant and Willa with respect to a Dispute that does not seek public injunctive relief, and that determination becomes final after all appeals have been exhausted, then this Arbitration Agreement (except for this sentence) shall be null and void in its entirety with respect to such proceeding; and (B) if a Dispute is brought seeking public injunctive relief and a court determines that the restrictions in the Class Action Waiver or  elsewhere in this Arbitration Agreement prohibiting the arbitrator from awarding relief on behalf of third parties are unenforceable with respect to such Dispute, and that determination becomes final after all appeals have been exhausted, then the Dispute for public injunctive relief will be determined in court and any individual Disputes seeking monetary relief will be arbitrated.  In such a case, the parties will request that the court stay the Dispute seeking public injunctive relief until the arbitration award pertaining to individual relief has been entered in court.  The parties acknowledge and agree that under no circumstances will a class action or a claim for public injunctive relief be arbitrated.

(i)      The parties agree that the mutual promises in this Arbitration Agreement constitute the consideration necessary to make this Arbitration Agreement enforceable even if Willa does not enter into any further agreements.  This Arbitration Agreement shall survive the termination of this Agreement, the rescission or performance in full of all obligations under this Agreement, any assignment of this Agreement and any bankruptcy.  The arbitrator’s award will be final and binding, except for any appeal right under the FAA.  No arbitration award involving the parties will have any preclusive effect as to issues or claims in any dispute involving anyone who is not a party to the arbitration, nor will an arbitration award in prior disputes involving other parties have preclusive effect in an arbitration between the parties to this Arbitration Agreement.

Section 10.16              Acknowledgement.  Each of the parties to this Agreement has had full opportunity to consult with counsel of their choice, and has either consulted with counsel of their choice or has decided not to do so.