Viably Growth Receivables Master Purchase Agreement

Last Updated: January 26, 2023

This Viably Growth Receivables Master Purchase Agreement (Agreement) governs one or more transactions (Transaction) that are or will be entered into by the parties and that are or will be governed by this Agreement and the relevant Appendix.

• This Agreement is entered into by and between you, as seller (Seller) and Viably Capital Inc., as buyer (Viably or Buyer) and is a legally binding contract between you and Viably regarding the Transactions.
• As used in this Agreement, you refers to the Company that has opened an Account on the Viably Banking platform and the Account Owner.

BY CLICKING “I ACCEPT” YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO ENTERING INTO TRANSACTIONS, YOU AGREE TO BE BOUND BY, THIS AGREEMENT, WHICH INCLUDES THE USER TERMS, the VIABLY ACCOUNT AGREEMENT and VIABLY’S PRIVACY POLICY (available at:  https://www.runviably.com/privacy-policy/).

• In the event of a conflict between the terms of the User Terms, the Viably Account Agreement or Privacy Policy, this Agreement governs with respect to the subject matter of such conflicting terms.
• Capitalized terms not defined herein have the meaning ascribed to them in the above referenced agreements.

1.  True Sale of Purchased Receivables.

a. Sale of Purchased Receivable. It is the intent of the parties that each purchase and sale of Receivables or Future Receivables (defined in the relevant Appendix, collectively referred to as the Purchased Receivables) hereunder is and are a true sale of such Purchased Receivables for all purposes and not a loan, pledge for security or any other lending arrangement, and the parties will not take or assert positions which are inconsistent with such treatment.

i. No Buyer Fees. Buyer does not charge any origination or broker fees for Seller selling its Receivables or Future Receivables to Buyer, nor does Buyer charge any interest or finance charges.

ii. Purchased Receivables. Each such sale is, subject to the terms hereof, absolute and irrevocable, providing Buyer with the full risks and benefits of ownership of the Purchased Receivables (such that the Purchased Receivables and any proceeds thereof would not be property of the Seller’s estate in the event of the Seller’s bankruptcy).

iii. Record in Seller’s Books. Seller must record the Purchased Receivables as property of Buyer in Seller’s books and records.  Once purchased hereunder, Buyer has the right to sell, assign, transfer, pledge, or otherwise dispose of the Purchased Receivables or any portion thereof without notice to or consent from Seller.

b. Precautionary Measures.

i. As a precautionary measure, in the event that it were to be determined that the transactions evidenced hereby constitute a lending transaction and not a purchase and sale, then:

(x) this Agreement constitutes a security agreement under applicable law, and

(y) Seller is deemed to have hereby granted Buyer a first priority perfected security interest in and to all of Seller’s right, title, and interest, whether now owned or hereafter acquired, in, to, and under the Collateral to secure the payment to Buyer of all amounts owing under or with respect to such Purchased Receivables and all other obligations of Seller hereunder.

ii. Collateral means, all current, existing and future Receivables and Future Receivables, whether constituting an account, instrument, document, contract right, general intangible, chattel paper or payment intangible, in respect of the sale of goods or rendering of services by Seller on a Marketplace.

c. Seller Consent Regarding Filings. Seller consents to Buyer’s preparation and filing of all instruments and documents that Buyer determines are reasonably necessary to perfect Buyer’s rights with respect to the Purchased Receivables including, without limitation, appropriate UCC financing statements, including financing statements describing the Collateral as “all assets” or “all personal property” or words of like meaning, to evidence, maintain and perfect its interest in the Collateral.

i. The financing statement filing authorized by Seller hereunder also constitute evidence of and perfect Seller’s sale to Buyer of the Purchased Receivables.

2.  Power of Attorney.

a. Appointment. Seller does hereby irrevocably appoint Buyer and its successors and assigns as Seller’s true and lawful agent and attorney-in-fact with full authority to take any action or execute any instrument or document to collect all Receivables or Future Receivables, including, without limitation:

i. to sell, assign, transfer, pledge, compromise, or discharge the whole or any part of the Purchased Receivables;

ii. to demand, collect, receive, and sue for the monies due or which may become due upon or with respect to the Purchased Receivables and to compromise, prosecute, or defend any action, claim, case or proceeding relating to the Purchased Receivables, including the filing of a claim or the voting of such claims in any bankruptcy case, all in Buyer’s name or Seller’s name, as Buyer may choose;

iii. to prepare, file, and sign Seller’s name on any notice, claim, assignment, demand, draft, or notice of or satisfaction of lien or similar document with respect to Purchased Receivables;

iv. to notify all customers of Seller and any Marketplace with respect to the Purchased Receivables to pay Buyer directly;

v. to receive, open, and dispose of all mail addressed to Seller for the purpose of collecting the Purchased Receivables;

vi. to endorse Seller’s name on any checks or other forms of payment on the Purchased Receivables;

vii. to execute on behalf of Seller any and all instruments, documents, financing statements, and the like to perfect Buyer’s interests in the Purchased Receivables; and

viii. to do all acts and things necessary or expedient, in furtherance of any such purposes.

b. Exceptions. Notwithstanding the foregoing, Buyer covenants and agrees not to exercise its rights to act as agent or attorney-in-fact for Seller

i. unless and until Seller is in Default under this Agreement, or

ii. at any time that Buyer has no interest in Receivables or Future Receivables and Seller has no outstanding obligations to Buyer under this Agreement.

c.  Marketplace Instructions and Directions. Each Marketplace may rely on this section as constituting Seller’s written authorization to provide any information requested by Buyer and to make payments to Buyer as aforesaid. Each Marketplace is hereby irrevocably authorized and directed by Seller to follow any instruction of Buyer regarding payment or transfer of funds as instructed by Buyer without inquiry as to Buyer’s right or authority to give such instructions. Seller may not interfere with Buyer’s instructions to any Marketplace or any Marketplace’s compliance with this Agreement or request any modification to Buyer’s instructions without Buyer’s prior written consent.

3. Representations and Warranties.

Seller represents and warrants as follows:

a. Existence. Seller is validly existing and in good standing under any applicable laws of its state of organization. Seller has all requisite power and authority to own, lease, pledge and operate its properties and assets and to carry on its business.

b. Authority.  Seller has the power and authority to enter into and perform Seller’s duties and obligations under this Agreement. Seller is not a party to any contract or aware of any existing situation that would prevent Seller from entering into this Agreement. Seller has taken all necessary action to authorize execution and delivery of, and performance under, this Agreement.  Seller is solvent and fully authorized to assign and sell the Purchased Receivables hereunder.

c. Compliance with Law; Agreements. Seller is in compliance in all respects with applicable laws and regulations and has valid permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged.

d. No Conflicts. Seller possesses and is in compliance with all permits, licenses, approvals, consents and any other authorizations necessary to conduct its business, and maintains insurance in amounts and against risks as are normal and customary for businesses of its size, nature and character.

i. Seller is in compliance with, and the execution of this Agreement and consummation of the transaction contemplated herein will not conflict with,

(x) any and all applicable federal, state and local laws and regulations,

(y) any agreements to which Seller is a party, and

(z) Seller’s articles or certificate of incorporation, bylaws, or other organizational documents.

Seller possesses all requisite permits, authorizations and licenses to own, operate and lease its properties and to conduct the business in which it is presently engaged.

Seller will promptly pay all necessary taxes, including but not limited to employment, sales and use taxes.

e. Status of Purchased Receivables.

i. Seller has not sold and is not subject to any other contract that provides for the sale, assignment, pledge, or any other transfer of any interest in the Purchased Receivables.

ii. The Purchased Receivables are and will be bona fide and existing obligations arising out of the ordinary course of Seller’s business.

iii. The Purchased Receivables are and will be owned by Seller free and clear of all claims, charges, liens, restrictions, encumbrances or security interests of any nature whatsoever (other than those arising in favor of Buyer under this Agreement).

f.  Accuracy of Information.

i. None of the statements, reports or other information concerning Seller, its business or assets, or the Receivables or Future Receivables furnished by or on behalf of Seller to Buyer, for use in connection with the Transactions contemplated by this Agreement, as of the date such statements, reports or other information were so furnished, contain any untrue statement of a material fact by Seller or omit to state a material fact necessary to make the statements of Seller contained herein or therein not materially misleading.

ii. Seller acknowledges that Buyer has relied and will continue to rely upon the validity, accuracy and completeness of all information (financial and otherwise) provided by or on behalf of Seller in connection with Buyer’s obligations hereunder.

g. No Proceedings.  There is no action, suit, claim, investigation or legal, administrative, or arbitration proceeding pending or currently threatened against Seller, whether at law or in equity or before any federal, state, local, foreign or other court, governmental department, commission, board, bureau, agency or instrumentality.

4. Seller Covenants.  Seller must comply with each of the covenants in this Section 4 during the term of this Agreement.

a. No Transfers.  Seller may not assign, transfer, sell, grant, or permit any lien or security interest in any interest the Seller may have in any Receivables or Future Receivables to or in favor of any other party, without Buyer’s prior written consent.

b. Maintenance of Bank Accounts.  Seller must maintain the Designated Seller Account into which payments received by Seller in respect of Receivables or Future Receivables will be deposited and may not change such bank account without Buyer’s prior written consent.  Seller must provide Buyer and its authorized agents with all information, authorizations, and passwords necessary for verifying Seller’s receivables, receipts, and deposits into the Designated Seller Account and the ACH Payout Account.  Seller authorizes Buyer to contact Seller’s current and prior banking institutions to get information Buyer deems necessary to review and evaluate Seller’s business or to monitor the Designated Seller Account and the ACH Payout Account.

c. Collections.  Seller must cause all payments in respect of Receivables or Future Receivables to be made directly to the Designated Seller Account and may not cause the Receivables or Future Receivables to be paid to any account other than the Designated Seller Account without Buyer’s prior written consent.  Buyer must direct each Marketplace to send all such payments solely to the Designated Seller Account.  Seller may not block Buyer from debiting the Designated Seller Account or ACH Payout Account, or otherwise interfere with Buyer’s ability to collect the Purchased Receivables.

d. Conduct of Business.  Seller must maintain its business in substantially the same manner as it existed as of the date of this Agreement and continue to conduct its business in a manner consistent with past practice.  Seller may not allow any other person to acquire, assume or take over the operation and/or control of Seller’s business or business location, whether physical or virtual.  Seller may not amend, modify, rescind or revoke or terminate its relationship with any Marketplace.  Seller may not change its place of business, legal name, trade name, entity type, or state of formation, domicile or residence from those set forth herein, without the prior written approval of Buyer, and in all events following at least 20 days prior written notice to Buyer of any such change.

5.  Seller Defaults.

a. Each of the following constitutes a Seller Default:

i. any representation or warranty made by Seller under this Agreement proves to have been false or misleading in any material respect on or as of the date made or deemed made;

ii. Seller assigns, transfers, sells, or grants, or permits any lien or security interest in any interest the Seller may have in any Receivables or Future Receivables to or in favor of any other party, without Buyer’s prior written consent;

iii. Seller fails to cause the Designated Seller Account to be the account into which payments in respect of Receivables or Future Receivables are deposited, terminates the ACH authorization granted pursuant to Section 2(b) of the Appendix without Buyer’s prior written consent, or otherwise blocks or hinders Buyer’s ACH access to the Designated Seller Account or the ACH Payout Account;

iv. Seller otherwise fails to perform or observe in any material respect any covenant, term, condition, or agreement contained in this Agreement;

v. Seller (x) commences any case or proceeding seeking relief under any existing or future bankruptcy law or (y) is unable, or admits in writing its inability, to pay its debts as they become due;

vi. there occurs a material change in the beneficial ownership of Seller resulting in a change of control of Seller;

vii. Seller sells, leases, transfers, or otherwise disposes of all or substantially all of its property or assets, or consolidates with or merges into or with any corporation or other entity; or

viii. Seller disputes in any manner the validity or efficacy of any sale and assignment of the Purchased Receivables to Buyer.

b. Exercise of Rights. Without limitation of Buyer’s rights to liquidated damages under clause (c) below, upon the occurrence of a Seller Default, Buyer may by notice to Seller excise all rights and remedies under law (including rights and remedies of a secured party, under the New York UCC) against Seller and/or any of Seller’s customers to enforce Buyer’s rights under this Agreement and with respect to any Purchased Receivables, including by debiting any amounts owing to Buyer hereunder from the Designated Seller Account or, to the extent there are insufficient funds in the Designated Seller Account, from the ACH Payout Account, and  declare this Agreement to be terminated.

c. Liquidated Damages.  Without limitation of its Default rights in this Section 5 and any other remedy available to Buyer at law or in equity, Seller agrees to pay Buyer damages equal to the uncollected Settlement Amount in the event that Seller breaches any of its covenants under Section 4.

6. Indemnity; Costs.

a. In addition to all rights and remedies available to the parties hereto at law or in equity, Seller must indemnify, defend and hold harmless Buyer (and its respective employees, directors, agents, affiliates and representatives) (collectively, Indemnified Persons) from and against and pay on behalf of or reimburse each such Indemnified Person, as and when incurred, for any and all loss, liability, demand, claim, action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of any claims by or on behalf of such Indemnified Person or any third party, including interest, penalties, reasonable attorneys’ fees and expenses and all amounts paid in investigation, defense or settlement of any of the foregoing (including all reasonable attorneys’ fees and expenses incurred in connection with the enforcement of this Section) (collectively, Losses), that any such Indemnified Person may suffer, sustain, incur or become subject to, as a result of, in connection with, relating or incidental to or by virtue of:

i. any misrepresentation or breach of warranty of Seller under this Agreement;

ii. any nonfulfillment, default or breach of any covenant or agreement of Seller in this Agreement;

iii. any failure by Seller to comply with applicable law;

iv. any third party action, suit, claim, investigation or legal, administrative, or arbitration proceeding (including by a customer of Seller or any governmental authority) arising out of or relating to the Purchased Receivables; or

v. the commingling of Collections on Receivables or Future Receivables at any time with other funds of Seller.

b. Seller must pay on demand all reasonable costs associated with a breach by Seller of any of its obligations, covenants or any of the representations and warranties of Seller under this Agreement and the enforcement thereof by Buyer, including but not limited to court costs and attorneys’ fees.  For this purpose, “reasonable costs” include the costs, including attorneys’ fees, associated with defending, protecting, or enforcing Buyer’s rights under this Agreement including in any bankruptcy proceeding.

7. Term and Termination; Survival. This Agreement must continue in full force and effect unless and until terminated in accordance with its terms, or all amounts payable in respect of the Purchased Receivables have been remitted to Buyer and all amounts payable by Seller hereunder have been paid in full.  Furthermore, the obligations of Seller under Sections 6, and 8 of this Agreement survive any termination hereof.

8. Miscellaneous.

a. Counterparts; Integration. This Agreement and any amendments, waivers, consents, or supplements hereto may be executed in counterparts (and by different parties hereto on different counterparts), each of which constitute an original, but all of which when taken together constitute a single contract.  Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means (e.g. “pdf” or “tif”) are effective as delivery of a manually executed counterpart of this Agreement.  This Agreement constitutes the entire contract between the parties with respect to the subject matter hereof and supersedes all previous agreements and understandings, oral or written, with respect to the subject matter hereof.

b. Governing Law. This Agreement is governed by and construed and interpreted in accordance with the internal laws of the State of North Carolina.

c.  Severability. In the event that any provision of this Agreement is deemed invalid by reason of law, this Agreement will be construed as not containing such provision and the remainder of the Agreement remains in full force and effect.

d.  Amendments and Waivers. Neither this Agreement nor any provision hereof may be amended, modified, or waived except in writing signed by both parties.  Notwithstanding the foregoing, Buyer may, from time to time, amend this Agreement by providing notice to Seller in accordance with Section 8.h.ii, and such amendments will be effective for each Transaction with a Funding Date after such notice, and will not be effective with respect to Transactions with Funding Dates prior to such notice. No failure to exercise and no delay in exercising, on the part of Buyer, any right or remedy under this Agreement operates as a waiver thereof, nor may any single or partial exercise of any right or remedy preclude any other or further exercise thereof.

e. Successors; Assignment. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns as permitted hereby, provided, that the rights of Seller under this Agreement may not be assigned or transferred to any person (whether by merger, operation of law, or in connection with a change of control or otherwise) without the prior written approval of Buyer.

f. Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER IS NOT LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OF SELLER, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA, LACK OR LOSS OF PRODUCTIVITY, COST OF SUBSTITUTE EQUIPMENT OR SERVICES, EXCEPT THOSE WHICH ARISE PURSUANT TO BUYER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH CLAIM IN ADVANCE.

g.  Publicity. Seller authorizes Buyer to use its name in a listing of clients and in advertising and marketing materials.

h. Notices.

i. You agree that Viably and any agents acting on its behalf may send Notices to, receive communications from, or otherwise contact, including via text messages, the Account Owner, Administrators, or Users relating to Transactions in accordance with the terms outlined in this section. Viably and its agents may send Notices or otherwise communicate with you using the contact information provided to Viably or its agents by the Account Owner, Administrators, or Users, including phone numbers associated with mobile phones or devices, and may use autodialing or automated voice messaging technology. Viably and its agents are not responsible or liable for any charges or costs incurred by you, the Account Owner, Administrators, or Users in connection with such communications. Notices means any physical, voice, or electronic communication, or legal notices that are provided or directed to Company, Users, or Administrators through phone call, text messages, email, push notification, Company’s Account, or by any other means.

ii. Notices regarding payments, legal terms, and any other important Notices related to Transactions will be sent to the Account Owner and/or Administrators through their dashboard for the Account or email and are considered received 24 hours after sending.  Unless you’re communicating with Viably about a matter where Viably has specified another notice address (for example, certain communications specified in the Privacy Policy), you may contact Viably at [email protected]

i. NO JURY TRIAL; ARBITRATION.

i. WAIVER OF JURY TRIAL. SELLER AND BUYER EACH HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO, THIS AGREEMENT OR ANY OTHER PRESENT OR FUTURE INSTRUMENT OR AGREEMENT BETWEEN BUYER AND SELLER, OR ANY CONDUCT, ACTS OR OMISSIONS OF BUYER OR SELLER OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSONS AFFILIATED WITH BUYER OR SELLER, IN ALL OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.

ii. CONSENT TO BINDING ARBITRATION. THE PARTIES MUST RESOLVE ANY CLAIMS, DISPUTES, OR CONTROVERSIES ARISING OUT OF, OR RELATED IN ANY WAY, TO THIS AGREEMENT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, BY NEUTRAL, BINDING ARBITRATION BEFORE ARBITRATOR(S) IN RALEIGH, NORTH CAROLINA, UNLESS THE PARTIES MUTUALLY AGREE ON A DIFFERENT LOCATION.  THE ARBITRATION MUST BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. THE AWARD RENDERED THEREON BY THE ARBITRATOR IS FINAL AND BINDING ON THE PARTIES THERETO, AND JUDGMENT UPON ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT THAT HAS JURISDICTION.  NO CLAIM SUBMITTED TO ARBITRATION WILL BE HEARD BY A JURY; PROVIDED, THAT NOTHING IN THIS SECTION PREVENTS EITHER PARTY FROM APPLYING TO A COURT OF COMPETENT JURISDICTION FOR EQUITABLE OR INJUNCTIVE RELIEF.  ARBITRATION WILL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (9 U.S.C. § 1 ET. SEQ.) AND NOT BY ANY STATE LAW CONCERNING ARBITRATION.  ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION MUST BE SEVERED, AND THE REMAINING ARBITRATION TERMS MAY BE ENFORCED (BUT IN NO CASE MAY THERE BE A CLASS ARBITRATION).

j. Titles and Section Headings.  The titles and section headings used herein are for convenience only and may not be used in interpreting this Agreement.

9. Definitions.

ACH Payout Account means the account linked to the Designated Seller Account as set forth on Exhibit A to this Agreement.

Appendix means the Viably Cash Advance Appendix, attached hereto as Appendix I, or the Viably Growth Capital Appendix, attached hereto as Appendix II, as the case may be.

Business Day means any day other than a Saturday, Sunday, or other day on which banks in New York City are required or authorized by law to close.

Settlement Amounts means any payments or other collections or recoveries received by Seller or by Buyer (as assignee of Seller) in respect of Receivables or Future Receivables, as the case may be.

Designated Seller Account means the Viably account of Seller on the Viably platform set forth on Exhibit A to this Agreement.

Marketplace means any marketplace on which Buyer conducts its business.