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. A Merchant must be located within the United States and be at least 18 years old. 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 ARTICLE XI 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 TO RESOLVE DISPUTES, RATHER THAN A JURY TRIAL AND NOT ON A CLASS ACTION BASIS, OR IN A COURT THE ARBITRATION PROVISIONS LIMITS THE REMEDIES AVAILABLE TO YOU.
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 11.3.
“ Account Debtor” – The Customer of the Merchant.
“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 12.1.
“Arbitrator” is defined in Section 12.3).
“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.
“Chargeback Event” is defined in Section 2.08.
“Chargeback Price” is defined in Section 2.08.
“Class Action Waiver” is defined in Section 11.14.
“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.
“Collateral” means and includes all of the Merchants’ right, title and interest in and to each of the following, wherever located and whether now or hereafter existing or now owned or hereafter acquired or airing: (a) Accounts, (b) Chattel Paper, (c) Inventory, (d) Equipment, (e) Instruments, (f), Investment Property, (g) Documents, (h) Deposit Accounts, (i) Letter-of-Credit Rights, (j) General Intangibles (including payment intangibles), (k) Supporting Obligations, (l) all files, correspondence, computer programs, takes, disks and related data processing software which contain information identifying or pertaining to any of the Collateral or any Account Debtor or showing the amounts thereof or payments made thereon or otherwise necessary or helpful in the realization thereon or the collection thereof, and (m) to the extent not listed above as original collateral, proceeds and products of the foregoing.
“Collection Services” shall include the following services performed by Willa on behalf of Merchant as a result of the Receivable or Purchased Receivable hereunder: (i) Receivable and Purchased Receivable record keeping, including the recording of invoices and payments; and (ii) Collection of payments pursuant to the Receivable(s) or Purchased Receivable(s) as Willa sees fit.
“Customer” means a business entity, association, or any other similar organization to whom Merchant provides, agrees to provide, or arranges to be provided work done 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 2.08.
“Data Errors” is defined in Section 4.04.
“Dispute” is defined in Section 12.6.
“FAA” is defined in Section 11.10.
“Force Majeure Event” is defined in Section 10.08.
“Invoice” means a legal debt instrument which indicates the amount due from a buyer to pay for delivered goods/services.
“Invoice Purchase Request” is defined in Section 2.01.
“Merchant” is defined in opening paragraph of this Agreement.
“Merchant Account” means the account maintained by Willa on behalf of Merchant, 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.
“Merchant Provided Contract Data” is defined in Section 4.04.
“Obligations” (a) all present and future obligations owing by Merchant to Willa whether or not for the payment of money, whether or not evidenced by any note 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 Merchant is a Debtor, including but not limited to any obligations arising pursuant to letters of credit or acceptance transactions or any other financial accommodations or (b) as liquidated damages.
“Payment Account” means 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 12.6.
“Proceeds” is defined in Section 3.02
“Proceeds Account” is defined in Section 3.02
“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, work you have done or service(s) provided to the Customer 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); (ii) 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 (iii) 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 4.05(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.
“Services” shall mean funding, billing, management, Customer service and Collection Services, noted herein, 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 3.07(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 10.01.
“Termination Date” is defined in Section 10.01.
“Transaction Information” is defined in Section 5.04(a).
“Third-Party Financial Service Providers” means one or more financial institutions or financial service providers chosen by Willa to establish, maintain and facilitate payment to the Willa Account or Proceeds Account.
“UCC” means the Uniform Commercial Code (or any successor statute) as adopted and in force from time to time in the State of Delaware, or when the laws of any other state govern the method or manner of the perfection of enforcement of any security interest in any of the Collateral, the Uniform Commercial Code (or any successor statute) as adopted and in force from time to time in such state.
“Unfactored Invoices” means invoices not purchased under this Agreement.
“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 an account established by Willa in its name with a Third-Party Financial Service Provider to accept Receivable payments from Customers.
“Willa Pay” means the service within the Website or the App that communicates with the Customer on behalf of the Merchant and makes Proceeds available to the Merchant upon payment by the Customer.
“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 Invoice Purchase Request ; Purchase of Receivables by Willa. Upon the request of Merchant and establishment of a Merchant Account (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 “Invoice Purchase 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, Willa will respond to the Invoice Purchase Request by notifying Merchant of Willa’s decision via the Website or App, as applicable.
In addition to the above, Merchant acknowledges and agrees that Willa’s purchase of a Receivable in accordance with the Agreement may only occur if (i) Merchant has not sent any prior invoice(s) to its Customer for the relevant project and (ii) the project must have been delivered or completed to the Customer within the last month prior to such purchase or service provided. If a project is not finished and/or the Merchant has not delivered its services to the Customer at the time of an Invoice Purchase Request, the Customer must then provide written approval that the Merchant is permitted to invoice the relevant Customer upfront for such project and/or service.
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 Invoice Purchase Request, the purchase price ( 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 Invoice Purchase Request .
(a) Upon agreement by the parties to the purchase 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 Receivable for the Purchase Price, by causing the amount of such Purchase Price to be credited to the Merchant Account. At the time of each Purchased Receivable, Merchant shall be deemed to have sold, transferred, conveyed and assigned to Willa 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 Security Interest. To secure payment and performance of the Obligation, Merchant grants to Willa a continuing first priority security interest in and to the Collateral. Notwithstanding the creation of the above security interest, the relationship of the parties shall be that of Purchaser and Seller of receivables and not that of lender and borrower.
Section 2.04 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 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 for payment of the Adjustment.
Section 2.05 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 2.06 No Impairment. Merchant will not take any action (including placing or allowing placement of a lien or security interest on any Purchased Receivable by anyone other than Willa) 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 2.07 Amounts Received. If Merchant or any employee, agent or representative of Merchant (other than Willa) receives any payment on any Purchased Receivable, or any payment on any Purchased Receivable is processed or deposited by or for Merchant into any account other than the Merchant Account, then such funds shall be deem to be held in trust for Willa’s benefit and Willa shall be the beneficiary thereto. 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 payments to be paid, processed, settled or delivered to any person or account other than the Merchant Account, and Merchant shall take all affirmative steps at its expense and as necessary or appropriate to prevent any such occurrence from recurring.
Section 2.08 Chargeback of Purchased Receivables. For purposes of this Agreement, a “Chargeback 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 repayment 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 the case of a Chargeback Event arising from, relating to or in connection with a Purchased Receivable(s), Merchant shall repurchase such Purchased Receivable(s) at the Chargeback Price from Willa on a date mutually agreed to 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 notice to Merchant of Willa’s demand for such repurchase. (“Chargeback Date”).
The “Chargeback Price” means, with respect to a Purchased Receivable that must be repaid, 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 amount of the Chargeback Price shall be determined by Willa the business day before the Chargeback Date and following the completion of all Willa system file maintenance for that day (the “Cut-Off Date”).
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 repayment by Merchant of such Purchased Receivable. Following any such repayment, (a) Willa will continue to service the Receivable(s) that have not been purchased, if applicable, in the same manner as the other Receivables currently servicing for the for Merchant; (b) Willa will continue to have the right to receive payment from all other Purchased Receivables that are not subject to a Chargeback Event; and (c) any payment received by Willa for a Receivable after the Cut-off Date from any third party shall be held for the benefit of Merchant and remitted to the Willa 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 chargeback by any party of any Purchased Receivable from Willa under any circumstances.
Section 2.09 Authorization to Willa. Merchant hereby irrevocably authorizes Willa and any designee of Willa, at Merchant’s sole expense, to exercise at any time in Willa’s or such designee’s discretion all or 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 Willa or the Merchant, any and all cash, check, commercial paper, drafts, remittances and other instruments and documents relating to the Collateral or the payments as the result thereof, (b) take or bring, in the name of Willa or Merchant, all steps, actions, suits or proceedings deemed by Willa necessary or desirable to effect collections of or other realization upon the Purchased Receivables and other Collateral, (c) after an Event of Default, extend the time of payment of, compromise or settle for cash, credit, and upon any terms or conditions, any and all accounts or other Collateral which includes a monetary obligation and discharge or release of any Customer or other obligor (including filing of any public record releasing any Lien granted to Merchant by such Account Debtor), without affecting any of the Obligations, (d) execute in the name of the Merchant and file against Merchant in favor of Willa financing statements or amendments with respect to the Collateral, (e) pay any sums necessary to discharge any Lien or encumbrance which is senior to Willa’s security interest in the Collateral, which sums shall be included as Obligations, (f) file in the name of Merchant or Willa or both, as provided by in Section 3.06 Limited Power of Attorney, (g) at any time, irrespective of whether an Event of Default has occurred, without notice to or the assent of Merchant, notify any Account Debtor obligated with respect to any Receivable or Purchased Receivable, that the underlying Receivable or Purchased Receivable has been assigned to Willa by Merchant and that payment thereof is to be made to the order of and directly and solely to Willa and (h) communicate directly with Merchant’s Account Debtors to verify the amount, validity or collection status of any Receivable created by Merchant.
Section 2.10 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.
(b) 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 2.11 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.
Section 2.12 Notation. The following Notation may be included invoices for Purchased Receivables: “This invoice has been sold and assigned to and is payable only to Willa, (address, telephone number) to whom notice must be given of any merchandise returns or claims. Payment made to any other party does not constitute valid payment of this invoice.”
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 (https://secure.willa.com/policies/standard-operating-procedures). Merchant agrees to provide Willa, its Willa Subcontractors and its Third-Party Financial Services Providers, as the case may be, 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, its Willa Subcontractors and its Third-Party Financial Services Providers, as the case maybe, 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 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 received by Willa (the “Proceeds”) into any account established by Willa in its name with a Third-Party Financial Service Provider to which such Receivable payments shall be directed (the “Willa 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 Willa Account any and all amounts as may be then due Willa (i) at any time in Willa’s sole discretion, (ii) as the result of a Chargeback of a Purchased Receivable (See Section 2.08) from Merchant, or (iii) for an outstanding balance that is owed on a Purchased Receivable due to the breach of the Merchant.
(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 3.03 Standard of Performance. In performing the Collections 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.
Merchant further agrees that it may not use the Services provided to a Customer which constitutes (i)pornography, (ii) fraud, (iii) unfair, predatory or deceptive marketing or advertising, (iv) illegal products and services, (v) infringement on intellectual property rights, (vi) the sale, service or distributions of firearms, explosives and dangerous materials, (vii) gambling, (viii) cannabis products, (ix) or any other illegal activities according to Applicable Law.
Section 3.04 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 3.05 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 3.06 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 3.07 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 less any fees incurred by Willa for performing the Services. A list of applicable fees can be found here: https://www.willa.com/fees
(b) Willa is entitled to all costs and expenses incurred by Willa in performing collection services with respect to the Receivables.
(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 Merchant Account or Willa Account.
Article IV. ADDITIONAL SERVICING RIGHTS AND REQUIREMENTS; RECEIVABLES AND
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 Purchased 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 but shall be made available to Willa upon request. Willa reserves the right to cease or decline further servicing rights of Receivable due to the failure of the Merchant to cooperate and provide all files and records necessary in order for Willa to satisfactorily perform its servicing rights.
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 Willa’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.
(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 after receipt of Willa’s approval, execute the approved plan in accordance with its terms; and
(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 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 4.05.
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 4.05(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 4.05, or who are subject to equivalent professional responsibilities. The requirements of this Section 4.05(e) are subject to the exceptions set forth in Section 4.05(b).
Section 4.06 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.
Section 4.07 Payment Processing. Payment processing services for Willa may be provided by our Willa Subcontractors and/or Third-Party Financial Service Providers, which may include Stripe (“Stripe”). The processing of payments and remittances of proceeds as applicable, relating to your use of Willa will be subject to Stripe’s governing terms, available at https://stripe.com/us/legal/connect-account (“Stripe Services Agreements”). You hereby agree to be bound by Stripe’s Services Agreements, which may be modified by Stripe from time to time as set forth therein. As a condition of Willa enabling payment processing services through Stripe, you agree to provide Stripe with current, accurate, and complete information about you and your payment methods (billing address, bank account number, expiration date, etc.). From time to time, Willa Subcontractors and/or Third-Party Financial Service Providers may offer you additional services and features. Use of these additional services and features does not alter the terms and conditions of this Agreement, nor does it operate as a waiver of your obligations under this Agreement.
Section 4.08 Other Financial Services and Products. Willa will utilize the services of Willa Subcontractors and Third-Party Financial Service Providers who will, among other things, establish demand deposit accounts (“Account Program”), provide debit card (“VISA Debit Card Program”) and provide other financial services and products in order to pay Willa Merchants for Purchase Receivables and to receive payments from Customers. Willa is partnering with Piermont Bank (“Piermont”). As a program partner, Willa is responsible for managing the Account Program and the VISA Debt Card Program with Piermont. The Account Program and the VISA Debit Card Program will be subject to the Willa Business Deposit Account Agreement (https://secure.willa.com/unit/deposit-agreement) and the Willa VISA Debit Cardholder Agreement (https://secure.willa.com/unit/cardholder-agreement). You hereby agree to be bound by the Willa Business Deposit Account Agreement and the Willa VISA Debit Cardholder Agreement, which may be modified by Willa or Piermont from time to time as set forth therein. As a condition of Willa’s partnership with Piermont, you agree to provide Willa and Piermont with current, accurate, and complete information about you and your payment methods (billing address, bank account number, expiration date, etc.). From time to time. Use of these additional services and features does not alter the terms and conditions of this Agreement, nor does it operate as a waiver of your obligations under this Agreement.
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 shall 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. By use of the Willa App or Website, Merchant authorizes and consents to 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. Willa does not control, maintain, recommend, or endorse Third-Party Content or Third-Party Services, and Willa is not responsible or liable for any Third-Party Services or Third Party Content, including any damages, losses, failures, or problems caused by, related to, or arising therein, Your interactions and business dealings with the providers of the Third-Party Services and Third-Party Content, including products or services offered by such third parties, are governed by your agreements with them and are solely between you and the third party. You should review all relevant terms and conditions associated with Third-Party Services and Third-Party Content, including any privacy policies and terms of service. We are not responsible for any information that you agree to share with other third parties in connection with Third-Party Services and Third-Party Content.
(c) Account Information from Third-Party Services and Third-Party Content . Merchants may direct Willa to retrieve their own information maintained online by third-parties, including their Financial Service Providers or other third-party entities such as Stripe. (“Account Information”). Willa cannot always foresee or anticipate technical or other difficulties, including device operating environment malfunctions or other service interruptions, which may result in failure to obtain data or loss of data or personalization settings. Willa cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any User data, communications, or personalization settings. Such information may be more up-to-date when obtained directly from the relevant third-party sites. Willa is not liable to you for any information you provide to us from a Third-Party Service or Third-Party Content
(d) 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.
(e) Third-Party Disputes and Complaints. WILLA IS NOT AFFILIATED WITH ANY FINANCIAL SERVICE PROVIDER, THIRD-PARTY SERVICE OR THIRD-PARTY CONTENT, AND ANY DISPUTE OR COMPLAINT YOU HAVE WITH ANY FINANCIAL SERVICE PROVIDER, THIRD-PARTY SERVICE, THIRD-PARTY CONTENT OR OTHER THIRD PARTY ARISING FROM YOUR USE OF THE WILLA WEBSITE OR APP IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE WILLA (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES
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 n o 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 and comply with the terms and conditions of this Agreement;
(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 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 work done, or services provided 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 work 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 work or services;
(xii) the Receivables does not constitute work done or services provided to you, a company owned by Merchant or an Affiliated company or any company controlled by a relative to you; and
(xiii) 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. DEFAULT
Section 7.1 Event of Default. The occurrence or existence of any of the following events or conditions shall constitute an Event of Default hereunder:
(a) Merchant defaults in the payment of any of the Obligations or in the performance of any provision hereof or of any other agreement now or hereafter entered into with Willa, or any warranty or representation contained herein proves to be false in any way, howsoever minor;
(b) Merchant becomes subject to any debtor-relief proceedings, including by way of the commencement of any petition for relief filed by or against Merchant or any guarantor under any chapter of the federal bankruptcy laws, or seeks to adjudicate Merchant bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, or composition of Merchant’s debts;
(c) Merchant receives any payment from a Customer for a previously acquired and outstanding Purchased Receivable and fails to remit the Proceeds to Willa.
(d) Merchant admits in writing its inability to pay its debts, or shall make a general assignment for the benefit of creditors;
(e) Merchant otherwise transports, moves, interrupts, suspends, dissolves or terminates its business;
(f) Merchant transfers or sells all or substantially all of its assets;
(h) Merchant makes or sends notice of any intended bulk sale or transfer;
(i) Merchant uses multiple depository accounts without the prior written consent of Willa;
(j) Merchant changes its depositing account without the prior written consent of Willa;
(k) Merchant fails to establish a Proceeds Account with Willa’s designated Third-Party Financial Institution or closes the Proceed Account without the prior written consent of Willa;
(k) Merchant performs any act that reduces the value of any Collateral granted under this Agreement; or
(l) Merchant engages a third party in an attempt to cease direct communication and/or contact with Willa.
Section 7.2 Remedies. In the event of default, Willa may proceed to protect and enforce its rights or remedies by suit in equity or by action at law, or both, whether for the specific performance of any covenant, agreement or other provision contained herein, or to oppose the discharge of Merchant's obligations hereunder or any other legal or equitable right or remedy.
Section 7.3 Confession of Judgment. In the event of default, Willa may also file a Complaint in Confession of Judgment pursuant to the Warrant of Attorney contained herein.
Section 7.4 All rights, powers and remedies of Willa in connection with this Agreement may be exercised at any time after the occurrence of an Event of Default, are cumulative and not exclusive, and shall be in addition to any other rights, powers or remedies provided by law or equity.
Section 7.5 Warrant of Attorney to Confess Judgment. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT AND VIOLATION OF THE REPRESENTATIONS AND WARRANTIES MADE HERETOFORE BY MERCHANT, MERCHANT IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR ANY CLERK OF ANY COURT OF RECORD, WHERE APPLICABLE, TO APPEAR FOR AND CONFESS JUDGMENT AGAINST MERCHANT FOR SUCH SUMS AS ARE DUE AND/OR MAY BECOME DUE UNDER THIS AGREEMENT OR ANY ACCOMPANYING DOCUMENTS, WITH OR WITHOUT DECLARATION, WITH COSTS OF SUIT, WITHOUT STAY OF EXECUTION AND WITH AN AMOUNT, FOR LIEN PRIORITY PURPOSES, EQUAL TO TEN PERCENT (10%) OF THE AMOUNT OF SUCH JUDGMENT, BUT NOT LESS THAN ONE THOUSAND DOLLARS ($1,000.00), ADDED FOR ATTORNEYS' COLLECTION FEES, WITH THE ACTUAL AMOUNT OF ATTORNEY'S FEES AND COSTS TO BE DETERMINED IN ACCORDANCE WITH THE SECTION OF THIS AGREEMENT "ATTORNEY'S FEES AND COLLECTION COSTS." IF A COPY OF THIS AGREEMENT, VERIFIED BY AFFIDAVIT BY OR ON BEHALF OF WILLA SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AGREEMENT AS A WARRANT OF ATTORNEY. THE AUTHORITY AND POWER TO APPEAR FOR AND CONFESS JUDGMENT AGAINST MERCHANT SHALL NOT BE EXHAUSTED BY THE INITIAL EXERCISE THEREOF AND MAY BE EXERCISED AS OFTEN AS PURCHASER SHALL FIND IT NECESSARY AND DESIRABLE AND THIS BUSINESS CASH ADVANCE AND SECURITY AGREEMENT SHALL BE A SUFFICIENT WARRANT THEREFOR. WILLA MAY CONFESS ONE OR MORE JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF THE AMOUNTS OWING HEREUNDER, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN CONFESSED ON MORE THAN ONE OCCASION FOR THE SAME AMOUNTS. IN THE EVENT ANY JUDGMENT CONFESSED AGAINST THE MERCHANT HEREUNDER IS STRICKEN OR OPENED UPON APPLICATION BY OR ON MERCHANT'S BEHALF FOR ANY REASON, PURCHASER IS HEREBY AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST MERCHANT FOR ANY PART OR ALL OF THE AMOUNTS OWED HEREUNDER, AS PROVIDED FOR HEREIN, IF DOING SO WILL CURE ANY ERRORS AND DEFECTS IN SUCH PRIOR PROCEEDINGS.
Section 7.6 Costs. Merchant shall pay to Willa all reasonable costs associated with (a) a breach by Merchant of the Covenants in this Agreement and the enforcement thereof, and (b) the enforcement of Willa’s remedies set forth in Section 6.2 above, including but not limited to court costs and attorneys' fees.
Article VIII. TAXES
Section 8.01 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 IX. INDEMNIFICATION AND LIMITATION OF LIABILITY
Section 9.01 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 9.02 Notice, Defense and Resolution of Indemnification Claims.
(a) If Willa receives notice of any claim for which indemnification may be available under this Agreement, Willa will promptly notify the Merchant 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.
(b) Within thirty (10) 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.
(c) If Merchant elects to defend and indemnify the claim, Willa must cooperate with the Merchant in its investigation and defense thereof (which will be conducted at Merchant’s sole expense). Willa 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 Willa , does not involve more than the payment of money, and grants Willa 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.
(d) . 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 9.03 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 X. TERM AND TERMINATION
Section 10.01 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 10.02 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 10.03 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 XI. MISCELLANEOUS
Section 11.01 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 11.02 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, chief accounting officer, or Merchant’s company representative, 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 11.03 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 11.04 Notices. All notices and other communications to be provided by Merchant to Willa shall be effective upon confirmed delivery to firstname.lastname@example.org, 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 11.05 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 11.06 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 11.07 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 11.08 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 11.09 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 11.10 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 11.11 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 11.12 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 11.13 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 11.14 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 11.15 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.
Section 11.16 Marketing communication. By setting up a Willa Account, you consent to receiving marketing communications by automatic telephone dialing system or other technology, including calls, pre-recorded messages, and recurring text messages from Company and its representatives at the telephone number provided. Reply HELP for help and STOP to cancel texts. Msg & data rates may apply.
Section 11.17 Purchase via app store. This Application or specific Products available for sale on this Application must be purchased via a third-party app store. To access such purchases, Users must follow the instructions provided on the relevant online store (such as "Apple App Store" or "Google Play"), which may vary depending on the particular device in use.
Unless otherwise specified, purchases done via third-party online stores are also subject to such third-parties’ terms and conditions, which, in case of any inconsistency or conflict, shall always prevail upon these Terms.
Users purchasing through such third-party online stores must therefore read such terms and conditions of sale carefully and accept them.
Subscriptions allow Users to receive a Product continuously or regularly over time. Details regarding the type of subscription and termination are outlined below.
Subscriptions handled via Apple ID
Users may subscribe to a Product using the Apple ID associated with their Apple App Store account by using the relevant process on this Application. When doing so, Users acknowledge and accept that
The above shall prevail upon any conflicting or diverging provision of these Terms.
Subscriptions may be terminated by sending a clear and unambiguous termination notice to the Owner using the contact details provided in this document, or — if applicable — by using the corresponding controls inside this Application.
Section 11.18 Willa Premium. Willa Premium is a subscription-based service offered by Willa that grants subscribers access to certain features within the app not available to non-subscribers. Willa Premium is available for purchase on a monthly or annual basis, with pricing displayed in the app at the point of purchase. Willa Premium subscriptions will be managed through in-app payments and are subject to the terms and conditions of the relevant app store, such as the Apple App Store.
Section 11.19 Features of Willa Premium. Willa Premium subscribers will have access to the following features:
(a) Unlimited access to the Deal Feed, which provides subscribers with access to 15 opportunities to reach out to brands and agencies each day.
(b) Access to the Client Rating feature, which allows subscribers to view the payment history and other external factors of potential clients to determine the risk of working with them.
(c) Priority Support, which means that incoming and inbound support tickets from Willa Premium subscribers will be prioritized over those from non-subscribers.
Section 11.20 Termination of Willa Premium. Willa Premium subscriptions may be terminated by the subscriber at any time through the relevant app store or by contacting Willa support. Willa reserves the right to terminate Willa Premium subscriptions for any reason at any time, with or without cause.
Section 11.21 Debit Card Cash Back. Willa Premium subscribers are eligible to receive a percentage of cash back on certain purchases made with their Willa Debit Card, subject to the terms and conditions outlined in this Section.
Section 11.22 Eligibility for Debit Card Cash Back. To be eligible for Debit Card Cash Back, a subscriber must have an active Willa Premium subscription at the time of purchase and must use their Willa Debit Card to make the purchase.
Section 11.23 Exclusions from Debit Card Cash Back. The following purchases are not eligible for Debit Card Cash Back:(a) Purchases made at merchants that are classified as "cash equivalent" or "financial institutions" by Visa.
(b) Purchases made with a Willa Debit Card that is not in good standing or has been suspended or terminated.
Section 11.24 Debit Card Cash Back Rewards. Debit Card Cash Back rewards will be credited to the subscriber's Willa account within 30 days of the eligible purchase. Willa reserves the right to change the percentage of Debit Card Cash Back available to subscribers at any time and without notice.
Section 11.25 Debit Card Cash Back Termination. The Debit Card Cash Back program may be terminated by Willa at any time, with or without cause. In the event of termination, any Debit Card Cash Back rewards earned but not yet credited to a subscriber's account will be forfeited.
Section 11.26 Changes to Willa Premium and Debit Card Cash Back. Willa reserves the right to change the features of Willa Premium and the terms and conditions of the Debit Card Cash Back program at any time and without notice. It is the responsibility of the subscriber to keep informed of any changes to Willa Premium and the Debit Card Cash Back program.
Section 11.27 Disputes. Any disputes arising out of or related to Willa Premium or the Debit Card Cash Back program will be resolved in accordance with the arbitration provisions set forth in Article IX of these terms and conditions.
Article XII. ARBITRATION PROVISION
Section 12.1 General. If you are not a resident of the United States or you are currently on active duty status outside the United States, this Section (Arbitration) will only apply to you to the extent applicable law in your country of residence permits.
This arbitration provision (the “Arbitration Agreement”) is an agreement between Merchant and Willa to arbitrate disputes in the most expedient and cost-effective manner. The parties agree that once any party has elected to arbitrate a Dispute, binding arbitration is the exclusive method for resolving that Dispute. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. Further, you agree to bring any claims regarding Willa in your individual basis. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND WILLA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION WILL APPLY TO YOU AND WILLA UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION (OPT OUT).
Section 12.2 Exceptions. Despite the provisions of Section 11.1 (Generally), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.
Section 12.3 Arbitrator. Any arbitration between you and Willa shall be governed and administered by American Arbitration Association in accordance with its Commercial Arbitration Rules. and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”). The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Willa. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Section 12.4 Notice. A party who intends to seek arbitration must first send a written notice of the dispute to the other party, on an individual basis, within the applicable statute of limitations period (“Notice”). Willa’s email address for Notice is (email address). The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to Willa, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 45 days after the Notice is received, you or Willa may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Willa must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Willa will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Willa in settlement of the dispute prior to the arbitrator’s award; or (c) $1,000. 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.
Section 12.5 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.
Section 12.6 “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.
Section 12.7 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.
Section 12.8 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.
Section 12.9 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.
Section 12.10The 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.
Section 12.11 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.
Section 12.12 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.