PURCHASE PROGRAM AGREEMENT
THIS PURCHASE PROGRAM AGREEMENT (this “PURCHASE PROGRAM AGREEMENT”) by and between you, (the “Accountholder”), and Betterfin, Inc. (“Betterfin”), a Delaware Corporation located at 5 Devoe, 1st Floor Brooklyn NY 11211 with reference to the following facts:
WHEREAS, Betterfin is engaged in the business of providing a program (the “Purchase Program”) for products offered for sale by merchants utilizing a network provided by Apruve, Inc., a Delaware corporation (together with its affiliates, “Apruve”); and
WHEREAS, Accountholder requests Betterfin to accept and onboard Accountholder by reviewing its application and, upon approval, assigning a Purchase Program account number and allow Accountholder to participate in the Purchase Program.
NOW THEREFORE, in consideration of the mutual covenants provided herein, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to be legally bound as follows:
- Purchase Program Enrollment
Upon review and approval by Betterfin of your application, Betterfin shall issue you with a Purchase Program account (the “Account”) identified by an Account specific identification number. Upon Approval, Accountholder may purchase goods and services from participating merchants up to Accountholder’s Purchase Limit.
- Evaluation/Security Deposit
- Program Usage
Participation in the Purchase Program by the Accountholder is subject to Betterfin’s approval of Accountholder’s application and Accountholder’s acceptance of all terms and conditions contained herein, and Accountholder’s utilization of the Purchase Program provided hereunder shall be considered acceptance for the purposes hereof. This Agreement and the terms and conditions contained herein may be amended, modified, or otherwise supplemented from time to time by Betterfin upon no less than fifteen (15) days’ prior written notice, and if no effective date of the revised terms is provided in such notice, then such revised terms are effective fifteen (15) days from the date of such notice (for purposes hereof, email notification shall constitute written notice). After receipt of such notice, Accountholder’s continued possession or use of its Account under the Purchase Program shall be considered acceptance of such revised terms and conditions. If Accountholder does not accept the changes, then Accountholder may close its Account by notifying Betterfin at the following telephone number: 1-845-605-8069, any time before the changes come into effect, provided that outstanding and pending amounts payable under the Account are paid in full. Usage of the Account by the Accountholder includes the retention or use of the Account by (i) the Accountholder or (ii) any person or entity under Accountholder’s direction or control. As a condition of participating in the Purchase Program, Accountholder consents to receive information from both Betterfin and Apruve electronically through the Betterfin portal (“Program Website”), unless another method of communication is agreed to by Betterfin. Account history, statements, and related communications may only be available on the Program Website for a limited time. Accountholder should print or otherwise save copies of any history, statements, or communications for its own records.
- Use of the Account.
- All accounts issued in connection with the Purchase Program are non-transferable. Accountholder will be responsible for all charges incurred through the use of the Account issued hereunder. The Accountholder is liable for any unauthorized uses of the Account, and the Accountholder agrees to be responsible for any unauthorized use. If an Account Number is lost or stolen, it is the Accountholder’s sole responsibility to call Apruve immediately at 1-844-427-7883 to prevent unauthorized usage and any unauthorized usage prior to such notification shall remain the Accountholder’s responsibility. Accountholder must follow-up telephone notification with written notification sent directly to Apruve, at the notice address listed below, via email at firstname.lastname@example.org, or through the Program Website. Upon receipt of such notice, Apruve will suspend and/or close the Account and will take commercially reasonable steps to prevent the usage of the Account Number. If the Account Number is honored prior to the receipt of such notice, Accountholder will be responsible for all charges incurred through the use of the Account.
- Accountholder shall be responsible for all unauthorized usage prior to notification in accordance with this Section 4 except for unauthorized usage related to Account numbers that have been compromised, stolen, or otherwise misappropriated due to gross negligence on the part of Apruve and/or Betterfin.
- The Accountholder is responsible for protection of password(s) and access to the Program Website and agrees it is liable for any unauthorized uses of the Program Website and the Account as set forth in this Section 4.
- Access to the Program Website must be restricted to officers or other authorized representative(s) of Accountholder. In the event a password is lost or compromised, or Accountholder believes there may have been any unauthorized access to its Account, it must immediately notify Apruve. All requests for changes to the Account or other communications regarding the Account must be submitted electronically through the Program Website, or in a written notice, or in an email from an officer and/or another authorized representative of the Accountholder, or as otherwise agreed to by Apruve and Betterfin.
- Representations and Warranties
Accountholder represents and warrants the truth, completeness, and accuracy of the following in connection with this Agreement:
- The financial information and all other information provided to Betterfin, Apruve or any merchant as part of the Purchase Program;
- This Agreement is valid, binding, and enforceable;
- The execution of this Agreement and the performance of its obligations hereunder are within the Accountholder’s (or its designee’s) power, have been authorized by all necessary corporate actions and does not constitute a breach of any agreement of Accountholder with any other party;
- Accountholder has and continues to comply with all applicable state and federal statutes, ordinances, rules, regulations, and requirements of governmental authorities as they relate to the use of the Account;
- The execution of this Agreement and the performance of its obligations hereunder shall not cause a breach by Accountholder of any duty arising in law or equity;
- Accountholder possesses the financial capacity to perform all of its obligations hereunder; and
- The purchase of merchandise and or services from Merchant by Accountholder shall be used solely to carry on a business or commercial enterprise and shall not be used for individual, personal, family, or household use.
- Limitations of Warranties
Betterfin is not a seller of the merchandise or services of any merchants participating under the Purchase Program and does not warrant any merchandise or services from any source obtained by Accountholder under the Purchase Program. Betterfin neither sells nor warrants in any respect any of the goods or services obtained from merchants participating under the Purchase Program, or from Apruve and any affiliates of Apruve through whom Accountholder can use its Account to purchase goods. Betterfin’s sole function in connection with the Purchase Program is to furnish financing services to the Accountholder. BETTERFIN AND APRUVE HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO ANY SUCH GOODS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
- Purchase of Accounts (This is Not a Loan)
Under the Purchase Program, Betterfin takes assignment of certain accounts receivable from participating merchants from whom Accountholder purchases merchandise and or services. Accountholder acknowledges that any invoice generated as a result of such purchases will be payable to Betterfin.
- Indemnification and Limitation of LiabilityAccountholder shall indemnify and hold Betterfin and Apruve harmless against all losses, damages, costs, expenses (including attorneys’ fees), and liability, including any third party claims, which may result from: (i) the proper performance of Betterfin’s or Apruve’s obligations hereunder; (ii) any negligent or wrongful act or omission of Accountholder, its directors, officers, agents, employees, and subcontractors; or (iii) any breach of Accountholder of the representations and warranties made hereunder. IN NO EVENT SHALL BETTERFIN OR ANY OF ITS AFFILIATES OR SUBSIDIARIES BE LIABLE TO ACCOUNTHOLDER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR PUNITIVE DAMAGES OF ANY NATURE, OR HAVE ANY LIABILITY AS A RESULT OF ANY DATA BREACH, IP INFRINGEMENT OR BREACH OF CONFIDENTIALITY OBLIGATIONS BY APRUVE OR ANY MERCHANT IN CONNECTION WITH THE PURCHASE PROGRAM, OR FOR APRUVE’S OR A MERCHANT’S FAILURE TO PROPERLY AND SECURELY STORE ACCOUNTHOLDER’S INFORMATION OR PROPERLY TRANSMIT ACCOUNTHOLDER’S INFORMATION, INCLUDING ANY UPDATES WITH RESPECT TO SECTION 4, TO BETTERFIN, AS WELL AS ANY BREACH BY APRUVE OR A MERCHANT OF ANY CONTRACT TERMS WITH ACCOUNTHOLDER. ACCOUNTHOLDER ACKNOWLEDGES THAT EMAIL IS NOT A SECURE FORM OF TRANSMISSION AND THAT IT MAY POTENTIALLY BE INTERCEPTED OR OTHERWISE OBTAINED BY PERSONS OTHER THAN THE INTENDED RECIPIENT AND WAIVES ALL RIGHTS AND REMEDIES PERTAINING TO THE COMPROMISE OF ANY ELECTRONIC COMMUNICATION BETWEEN BETTERFIN, APRUVE, AND ANY MERCHANT PARTICIPATING IN THE PURCHASE PROGRAM. ACCOUNTHOLDER ACKNOWLEDGES AND AGREES THAT BETTERFIN’S AND APRUVE’S ENTIRE JOINT AND SEVERAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF THE AMOUNTS RECEIVED FROM ACCOUNTHOLDER IN THE PAST 12 MONTHS OR $10,000.
- Purchase Limit
A Purchase Limit will be assigned to each Accountholder, subject to Betterfin’s review of such Accountholder’s application pursuant. The calculation of such Purchase Limit shall include the outstanding amounts of all purchases Accountholder has made under the Purchase Program, whether billed or unbilled. If Accountholder finds its Purchase Limit to be inadequate, then Accountholder may notify Apruve by calling 1-844-427-7883, by email at email@example.com or through the Purchase Program’s website presently located at www.apruve.com and requesting a modification to its Purchase Limit providing any additional evidence as may be requested by Betterfin or Apruve. Betterfin will review and modify Purchase Limits in accordance with Betterfin’s Purchase Limit policies.
- Payment/Late Fees
- Accountholder shall make payments to Betterfin or Betterfin’s designee as frequently as may be necessary to keep the outstanding Account balance within the Purchase Limit and in compliance with the payment terms set forth herein. If Accountholder or its bank for any reason should fail to timely pay any amount due Betterfin, Accountholder understands and agrees that Betterfin may immediately suspend all Accounts held by Accountholder and draw against any letter of credit or other security pledged by Accountholder for the benefit of Betterfin. If Accountholder’s bank should fail to honor payment to Betterfin or Apruve or any outstanding amounts due in connection with Accountholder’s Account becomes delinquent, then Betterfin may require immediate and full payment of all outstanding amounts. In the event that a payment made to Betterfin, Apruve or their designee is returned by the Accountholder’s bank, then Betterfin or Apruve reserves the right to charge a returned payment fee to the Accountholder’s Account in the amount of fifty dollars ($50.00) per instance or the maximum amount permitted by law, if less. Accountholder may pay its billing statement by direct debit to its bank account via automated clearing house (ACH), or through Electronic Funds Transfer (EFT), or such other means as approved by Betterfin and Apruve from time to time (to the extent payment is made by check, Accountholder shall send the payment to the address on the billing statement). Accountholder shall notify Betterfin of its election to pay any amounts due and payable hereunder through ACH, EFT or check via the Program Website or as otherwise instructed to Betterfin.
- Account statements will be issued by Apruve on either a monthly basis issued on the last day of the month (net 15) or on a daily basis (net 30 or net 60) depending on the Account’s billing settings in the Program Website . Statements that have a remaining balance after the due date are considered delinquent. Delinquent accounts may be assessed late fees at a monthly rate of the lesser of one and a half percent (1.5%) of the transaction value per month on all outstanding transactions or the maximum percentage interest rate assessable pursuant to applicable law. Late fees are assessed on each subsequent statement in which such late fees have accrued. Such late fees are only assessed on outstanding amounts and are not based on the entire amount billed in a billing period. Late fees may be waived or modified by Betterfin’s in its sole discretion with written notice to the Accountholder. The Accountholder is liable for all late fees assessed to the Account and must pay the fees to maintain the Account below the Purchase Limit and in good standing. Betterfin applies payments first to any accrued interest and then to billing statements on a first-in, first out basis.
- Betterfin may offset any amounts owed by Betterfin to Accountholder against any claims Betterfin has against the Accountholder. Accountholder is and shall be liable to Betterfin and Apruve for all costs and expenses incurred Betterfin in collection and enforcing its rights hereunder, including but not limited to, late fees, and reasonable attorneys’ fees, if any, incurred by Betterfin to collect all amounts due on Accountholder’s Account.
- The payment terms stated in this Agreement, and/or any subsequent amendments, apply to all undisputed invoices and supersede the payment terms of any Purchase Order (P.O.), third party contract, or any other documentation the Accountholder may have signed.
Accountholders have thirty (30) days from the original invoice date to dispute charges. All disputes must be submitted to merchant or Apruve by the Accountholder within such thirty (30) day period. If an Account transaction is not disputed within thirty (30) days from the original invoice date in accordance with the terms hereof, then the Accountholder is liable for all charges related to the transaction.
- Choice of Law; Jurisdiction; Venue/Waiver of Immunity/Trial by Jury
- This Agreement, and any continuing guaranty, as may be required, is governed by the laws of the State of New York, without reference to conflicts of laws principles, and it is agreed that jurisdiction of any legal action connected with this Agreement, including, without limitation, THE CLASS ACTION WAIVER provided in this section, shall be exclusively in the state or federal courts located in the State of New York. Notwithstanding the foregoing, Betterfin may, at its option, choose to pursue legal action against the Accountholder in any state or province in which the Accountholder does business or where jurisdiction may otherwise be proper. All actions, claims, disputes and proceedings arising under or relating to this Agreement shall be adjudicated on an individual basis, and Accountholder will not under any circumstances consolidate or seek class treatment for any such action, claim, dispute or proceeding unless previously agreed to in writing by Betterfin.
- Accountholder agrees that in the event of default, Betterfin may institute suit against the Accountholder in aforesaid courts and that service of process by certified mail, return receipt requested, postage prepaid, and addressed to the Accountholder shall be sufficient to confer jurisdiction of said courts, regardless of where the Accountholder is geographically located or does business.
- To the fullest extent permitted by applicable law, Accountholder expressly and irrevocably waives, and agrees not to assert, a defense of immunity on the grounds of sovereign immunity or other similar grounds in any action or proceeding which may be commenced or asserted by Betterfin against Accountholder or Accountholder’s revenues and/or assets, whether in whole or in part or otherwise, which status would otherwise entitle Accountholder to assert such a defense in any claim against it from: (a) suit; (b) jurisdiction of any court; (c) relief by way of injunction, order for specific performance or for recovery of property; (d) attachment of Accountholder’s revenues and/or assets (whether before or after judgement); and (e) execution or enforcement of any judgement to which Accountholder or Accountholder’s revenues and/or assets might otherwise be subject in any proceedings in the courts of any jurisdiction. THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF THESE TERMS AND CONDITIONS. No action shall be brought against Betterfin by Accountholder arising out of any transactions charged to any Account in accordance with this Agreement more than one (1) year from the date therefrom or, if less, such period of time set forth by the laws of the State of New York.
- Term and Termination
This Agreement will continue in effect until terminated by either party immediately upon written notice to the other at the mailing address or email address, in the case of Betterfin, as set forth herein, or in the case of Accountholder, at the mailing address or email address set forth in the Accountholder application or maintained in the Program Website. This Agreement may be terminated by either party at any time by giving written notice to the other party; provided, however, that such termination shall not relieve Accountholder of any outstanding amounts owed to Betterfin in connection with such Accountholder’s Account. Upon termination, all Accounts shall be immediately terminated and deactivated, and the Accountholder must immediately destroy all Account identification numbers in the possession or under the control of the Accountholder. Accountholder shall have the responsibility to pay all amounts outstanding, which shall become immediately due and payable. All terms and provisions by their nature that should survive the termination of this Agreement shall so survive and continue in full force and effect after the termination or expiration of this Agreement, including, without limitation, Sections 6, 7, 10, 11, 12 and 13.
Betterfin may assign or otherwise transfer this Agreement and any and all rights and obligations hereunder without prior notice to Accountholder. Accountholder may not assign or transfer this Agreement or any rights or obligations hereunder, by merger, or law, or otherwise, without the prior written consent of Betterfin.
- Waiver and Amendment
Failure by Betterfin to enforce any of its rights hereunder shall not constitute a waiver of such rights or any other rights hereunder. No waiver of any of the provisions of this Agreement shall be effective unless it is in writing, and signed by Betterfin. Any such written waiver shall only be applicable to the specific instance to which it relates and shall not be deemed to be a continuing or future waiver.
- Electronic Communication
This Agreement authorizes Betterfin and Apruve to transmit information via email to the undersigned Accountholder at the email address(es) provided for communication in the Accountholder application or maintained at the Program Website. Accountholder acknowledges that the email communication may contain confidential information intended solely for the use of the Accountholder and its authorized agents and representatives. In consideration of Betterfin’s and Apruve’s willingness to provide the reporting to Accountholder via email, Accountholder agrees that it will not hold Betterfin or Apruve responsible for any email communication intercepted or received by anyone other than the intended recipients. Accountholder hereby releases Betterfin and Apruve and their affiliates, and each of their agents, employees, and representatives, from any and all liabilities, claims, losses, damages, injuries, and expenses of any kind in any way connected with or arising out of the interception or receipt of the email communications by any unintended recipients. Accountholder hereby further agrees to indemnify, defend, and hold harmless Betterfin and Apruve and their affiliates, and each of their agents, employees and representatives, from and against any and all liabilities, claims, losses, damages, injuries, or expenses sought by a third party and in any way connected with or arising out of the interception or receipt of the email communications by any unintended recipients. Accountholder’s obligations, as set forth in Section 16, shall not apply to the extent such liabilities, claims, losses, damages, and injuries are caused by the gross negligence or willful misconduct of Betterfin, Apruve or their employees, or agents.
All written correspondence, with the exception of payments, pertaining to Accountholder’s Account shall be sent to the following address via certified or registered mail, overnight courier:
5 Devoe, 1st Floor
Brooklyn, NY, 11211
- Accountholder Data
The Apruve marks are trademarks owned by Apruve, Inc. The Betterfin marks are trademarks owned by Betterfin, Inc.
- Effective Date
This Agreement shall be effective on the date on which Accountholder executes this Agreement.
IF ANY PARTY REQUESTS, THE OTHER PARTY AGREE TO ARBITRATE ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT. IF ANY PARTY SEEKS TO HAVE A DISPUTE SETTLED BY ARBITRATION, THAT PARTY MUST FIRST SEND TO THE OTHER PARTY, BY CERTIFIED MAIL, A WRITTEN NOTICE OF INTENT TO ARBITRATE. IF THE PARTIES DO NOT REACH AN AGREEMENT TO RESOLVE THE CLAIM WITHIN 30 DAYS AFTER THE NOTICE IS RECEIVED, ANY PARTY MAY COMMENCE AN ARBITRATION PROCEEDING WITH THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) OR NATIONAL ARBITRATION FORUM (“NAF”). BETTERFIN WILL PROMPTLY REIMBURSE ACCOUNT HOLDER FOR ANY ARBITRATION FILING FEE AND, EXCEPT AS PROVIDED IN THE NEXT SENTENCE, BETTERFIN WILL PAY ALL ADMINISTRATION AND ARBITRATOR FEES. IF THE ARBITRATOR FINDS THAT EITHER THE SUBSTANCE OF THE CLAIM RAISED BY ACCOUNT HOLDER OR THE RELIEF SOUGHT BY ACCOUNT HOLDER IS IMPROPER OR NOT WARRANTED, AS MEASURED BY THE STANDARDS SET FORTH IN FEDERAL RULE OF PROCEDURE 11(B), THEN BETTERFIN WILL PAY THESE FEES ONLY IF REQUIRED BY THE AAA OR NAF RULES. THE PARTIES AGREE THAT, BY ENTERING INTO THIS AGREEMENT, THEY ARE WAIVING THE RIGHT TO TRIAL BY JURY. EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN THEIR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, THE PARTIES AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISION IS FOUND UNENFORCEABLE, THEN THE ENTIRETY OF THIS ARBITRATION CLAUSE SHALL BE NULL AND VOID.
- RIGHT TO OPT OUT OF ARBITRATION
ACCOUNT HOLDER MAY OPT OUT OF THE ARBITRATION PROVISION ABOVE. TO OPT OUT OF THE ARBITRATION CLAUSE, ACCOUNT HOLDER MUST SEND BETTERFIN A NOTICE THAT ACCOUNT HOLDER DOES NOT WANT THE CLAUSE TO APPLY TO THIS AGREEMENT. FOR ANY OPT OUT TO BE EFFECTIVE, ACCOUNT HOLDER MUST SEND AN OPT OUT NOTICE TO THE FOLLOWING ADDRESS BY REGISTERED MAIL, WITHIN 14 DAYS AFTER THE DATE OF THIS AGREEMENT:
BETTERFIN – ARBITRATION OPT OUT,
5 Devoe, 1st Floor
Brooklyn, NY, 11211
- Future Reference
Please retain this Agreement for future reference.