Seller seeks to sell on Payclass's Private Exchange notes of Private Debt / Equity of its Entity / Project in exchange for monies. Parties will interact in accordance with the Non-Disclosure and Non-Circumvention Policy. Seller accepts these Terms and Conditions by their legal Principal(s) / Officer(s), authorized to consent and bind the Seller into these Terms & Conditions, and effective as of latest date on signature section herein, and such acceptance constitutes the entire Consent Agreement ("Agreement").
Seller agrees, and understands as follows:
1. SCOPE OF WORK:
A. Payclass will utilize its own resources, funds and technology to market and arrange financing for Seller's Offering. At its own cost, Payclass may package, document, model and provide lender-ready and investor-ready Private Exchange Listings to its financial partners, who may be potential funders / buyers of Seller's private debt / equity. Payclass will perform its activities in good-faith, taking into account that Seller will perform its own activities in good-faith.
B. In its document submissions to Payclass, Seller / Borrower must disclose and include any known liens, judgements, pending litigation against the sponsor(s), principal(s), current assets, and targeted acquisition assets. These facts will appear later in investor's / lender's Due Diligence process, and based on severity, they may invalidate the transaction. This undesirable outcome will result in considerable loss of time and money for Payclass and Seller.
C. Payclass may inform of and communicate with Seller / Borrower about offers and interests third parties and /or buyers may have in Seller's Offering. Payclass may facilitate Seller's introduction and interactions with interested third parties. Seller will have sole discretion and responsibility in entering in contractual engagements and obligations with third Party funding sources / buyers that Payclass provided.
D. Seller / Borrower understands, intends, and commits to contributing its financial resources to its own transaction before Seller / Borrower receives financing from Payclass sources. Seller's pre-money, out-of-pocket contribution will be towards 3rd Party (not Payclass) soft costs for Underwriting and Due Diligence, such as, but not limited to, validation, appraisals, marketing, retainers, etc.
In the commercial capital markets, for transactions over US$ 25 million, Payclass observes a range of 0.15% - 0.3% (of total transaction) for these third party costs, and a minimum of $ 50,000. These costs / expenses are non-refundable and non-creditable towards the closing fees.
This payment is due after Seller / Borrower signs the Term Sheet / Funding Agreement with with the financial institution. Funding sources generally divide the total amount of Due Diligence in a few installments. Generally the first installment (due after signing the Term Sheet / Funding Agreement) is $ 50,000 or greater.
E. Payclass understands Seller may pursue other avenues to obtain financing, unrelated and unsourced from Payclass, and parties enter into this transaction as non-exclusive, independent parties thereof, and understand that this is not a client-contractor arrangement.
F. Without providing justification or reason, and at its sole discretion to assess transaction efficiency, Payclass may ignore, reject, refuse, or delay Seller's Request to list Seller's Offering in Payclass Private Exchange. Payclass has no obligation to provide any information to Seller on status or on progress of Seller's Listing in its Private Exchange, and may contact the Seller when it deems necessary to perform its work outlined herein.
G. Payclass does not charge Seller upfront for these activities, and Payclass does not ask for exclusivity. However, Seller must inform Payclass immediately for any change of circumstances, commitment, intent of its financing needs, and be considerate that Payclass will invest its own time and money in advance of the eventual success of Seller's request for financing.
H. Interest Ending Event: Payclass's interest will end when this event occurs:
When Seller receives financing from Payclass Exchange sources, or as otherwise noted herein.
2. COMPLIANCE WITH LAWS
PAYCLASS will fully comply with all applicable Federal and State laws, rules, statutes, acts, decisions, and orders regulating the business marketing and consulting services, collectively referred to as "applicable laws and regulations".
3. CONFIDENTIALITY OF INFORMATION
The parties agree that any information provided by a party is to be used solely for services under this Consent Agreement. Further, the parties agree that the transactions contemplated by the agreement shall remain confidential, and that all information and materials furnished to or obtained by a party with respect to any customer or Customer of a party, whether in the form of documents or otherwise, shall be held strictly confidential. Such information and materials shall be used by a party solely for the purpose of performing the services required hereunder. Accordingly, the parties agree not to disclose to any person or entity any of the terms hereof or of transactions contemplated hereby, or any customer information (including any financial information) provided by, or obtained from, any CUSTOMER or customer any non-public information relating to a party or any other confidential information referred to above, except for: (i) disclosure to a parties’ counsel or any agent or advisor acting on its behalf in connection with the negotiation, execution or performance of this agreement; (ii) disclosure as may be required or requested by any governmental agency or representative thereof or pursuant to legal process; (iii) any other disclosure with prior written consent of the respective party. Prior to any disclosure by a party permitted under clause (ii), it shall, if permitted by applicable laws or judicial order, notify the respective party of such pending disclosure. The provisions of this section shall be enforceable during the term of this agreement and for a period of twenty four (24) months after said termination for any cause.
4. NON-CIRCUMVENTION
(a) The Parties hereby agree that their business involves, among other activities, introducing, participating, effectuating and consummating transactions between their respective contacts, including other Parties and Affiliates (each, a “Transaction”). In consideration of the foregoing, each undersigned Party hereby irrevocably agrees and warrants that its principals, employees, partners, vendors and Affiliates shall not, directly or indirectly, interfere with, circumvent, attempt to circumvent, avoid or bypass any Party from any Transactions between the Parties’ contacts, or obviate or interfere with the relationship of any Party and its contacts for the purpose of gaining any benefit, whether such benefit is monetary or otherwise. The Parties also undertake not to make use of any third party to circumvent this paragraph.
(b) The Parties hereby legally and irrevocably bind themselves and guarantee to each other that they shall not directly or indirectly contact or communicate with, or submit a request for a product or service to, any contact, entity, or institution introduced by PAYCLASS to the Seller without the prior case-by-case written approval of PAYCLASS authorizing such contact or communication.
(c) In specific Transactions where one of the Parties allows two or more other Parties to communicate directly with one another, the Party allowing this direct communication shall be informed by the other Parties of the development of the Transactions by receiving copies of each and every correspondence, as well as updates of verbal communications made between the other Parties.
5. FEES
A. Debt financing: Payclass fee:
1) 1% (one percent) for successful financing less than $ 100,000,000 (One Hundred Million US Dollars).
2) 0.5% (half of one percent) for successful financing more than $ 100,000,000 (One Hundred Million US Dollars).
3) This fee is is Due at Closing, when Seller receives financing / funding from Payclass financing sources. Lender will pay Payclass same percentage at each closing event. Seller to ensure Lender lists Payclass's fee in the Closing Document.
B. Other types of funding: Seller to pay Payclass the fee of:
1) US$ 1,000,000 (One Million US Dollars) for each US$ 100,000,000 (One hundred Million US Dollars) budget, and proportionally for financing more or less than US $ 100,000,000 (One Hundred Million US Dollars).
2) Seller must pay Payclass these fees within seven (7) calendar days after each funding event that Seller receives financing / funding from Payclass sources. Seller will pay Payclass proportionally for:
(a) Any partial financing less than budgeted amount, and/or
(b) Surplus financing more than budget thereof.
C. Payclass earns zero fees if Seller obtains any type of financing from non-Payclass sources.
6. TERMINATION
Either Party can terminate this agreement at any time. Nevertheless, Seller will owe Payclass its due fees per Article 5 of this Agreement beyond any Termination Date until the Ending Event (see Article 1) has occurred.
7. MUTUAL INDEMNIFICATION
(a) PAYCLASS agrees to indemnify SELLER, its affiliates, and their respective directors, officers, employees, agents, counsel and advisors (each an “Indemnified Person”) against and hold each of them harmless from any and all liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including without limitation attorney’s fees), (collectively, “Claims”), which may be suffered by, or imposed on, incurred by or asserted against, any Indemnified Person, relating to or in respect of (a) any breach or non-compliance by PAYCLASS with any representation, warranty or other obligation of PAYCLASS under or with respect to this Agreement (including any third party claim arising out of or resulting from such breach or non-compliance), or (b) any non-compliance in PAYCLASS’s policies or practices or with applicable laws and regulations.
(b) SELLER agrees to indemnify PAYCLASS, its affiliates, and their respective directors, officers, employees, agents, counsel and advisors (each an “Indemnified Person”) against and hold each of them harmless from any and all liabilities, obligations, losses, claims, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including without limitation attorney’s fees), (collectively, “Claims”), which may be suffered by, or imposed on, incurred by or asserted against, any Indemnified Person, relating to or in respect of (a) any breach or non-compliance by Seller with any representation, warranty or other obligation of Seller under or with respect to this agreement (including any third party claim arising out of or resulting from such breach or non-compliance), or (b) any non-compliance in Customer’s olicies or practices or with applicable laws and regulations, or (c) any breach or non-compliance by Seller with applicable laws and regulations.
8. NON-SOLICITATION
SELLER agrees that it, its agents, subsidiaries, and employees will not solicit or attempt to solicit an employment Agreement of any kind with persons associated with PAYCLASS. The term “Persons associated with PAYCLASS” includes, but is not limited to: managers, salespeople, customer service personnel, and support staff which have an existing employment relationship with PAYCLASS, and receive compensation based on that relationship. In the event that SELLER hires an employee of PAYCLASS without prior written consent from the President of the PAYCLASS, SELLER agrees to pay PAYCLASS a sum equivalent to three years annual salary for the employee at their pay rate on the date of hire with SELLER. The parties to this Agreement acknowledge that the actual damages attributable to this breach would be difficult to calculate exactly, and agree that this is a reasonable sum to approximate the actual losses suffered by PAYCLASS in the event that said employee is hired by SELLER. It is agreed by the Parties that this Agreement shall remain in full force until said time as this contract is terminated and then for a period of twelve (12) months thereafter.
9. INDEPENDENT CONTRACTOR RELATIONSHIP
A. The relationship created by this Agreement is solely that of independent entities engaging in a beneficial transaction. This Agreement does not create any form of client-vendor, partnership, joint venture, or other similar business relationship between the parties. PAYCLASS and SELLER will use its own name in all communications with each other's customers, payors and/or third parties and will not hold itself out as doing business under the name of the other party. Parties shall have no authority to bind each other except as contained herein.
B. Payclass and Seller may inform of and introduce each other to third party offers, services, and products. However, Payclass does not endorse any 3rd Party instruments, entities or solutions. Seller will engage these 3rd parties on its own free will and account. Payclass does not provide any guarantees or assurances on quality, timeliness, or service levels of these 3rd parties, and Payclass does not provide any conflict resolution, mediation, or arbitration services.
10. GOVERNING LAW
This Agreement shall be enforced and construed in accordance with the laws of the State where originating service took place. Jurisdiction of any litigation with respect to this Agreement shall be in the state of service location, with venue in a court of competent jurisdiction located in applicable county. In the event of a conflict between the terms of this Agreement and the terms of any of the Underlying Agreements, the terms of this Agreement shall control.
11. SEVERABILITY
If any provision, paragraph, or subparagraph of this Agreement is adjudged by any court of law to be void or unenforceable in whole or in part, the adjudication shall not be deemed to affect the validity of the remainder of the Agreement, including any other provision, paragraph, or subparagraph. Each provision, paragraph, and subparagraph of this Agreement is declared to be separable from every other provision, paragraph, and subparagraph and constitutes a separate and distinct covenant.
12. SURVIVAL
All terms contained in this Agreement shall continue in full force and effect for the term of this Agreement and for a period of twelve (12) months after said Agreement is terminated for any cause. The longer terms as contained in paragraph 4 above shall extend this time requirement as it pertains to Confidentiality protection and/or issues.
13. NOTICES
Notices pursuant to this Agreement shall be sent to the signatories at the addresses as shown below.
14. FORCE MAJEURE
Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
15. VALIDITY OF AGREEMENT
Each party acknowledges to the other that the person executing this Agreement on behalf of such party is duly authorized to do so.
16. ENTIRE AGREEMENT
This represents the entire Agreement among the parties. There are no other agreements, promises, or undertakings between the parties except as specifically set forth herein. No alterations, changes, modifications, or amendments shall be made to this Agreement, except in writing and signed by the parties hereto.
The parties have executed this Agreement in duplicate and stipulate that each has the authority to bind their respective companies to this Agreement.
Signatory herein agrees and understands that by signing this document, all electronic signatures are the legal equivalent of their manual/handwritten signature and Signatory consent to be legally bound to this agreement. Signatory further agree their signature on this document is as valid as if it signed the document in writing. This is to be used in conjunction with the use of electronic signatures on all forms regarding any and all future documentation with a signature requirement, should any Signatory elect to have signed electronically. Under penalty of perjury, Signatory herewith affirms that its electronic signature, and all future electronic signatures, were signed by the Signatory itself with full knowledge and consent and is legally bound to these terms and conditions.