By entering into an assignment agreement (the “Assignment Agreement”) which specifically references these Terms and Conditions, the Parties affirm that they accept and are bound by these Terms and Conditions and that these Terms and Conditions are hereby incorporated in and form an integral part of such Assignment Agreement. Each capitalized term used but not otherwise defined in these Terms and Conditions shall have the meaning ascribed to it elsewhere in the Assignment Agreement into which these Terms and Conditions are incorporated.
This document contains very important information regarding the Parties’ rights and obligations, as well as conditions, limitations, and exclusions that might apply to Parties. The Parties should read it carefully. Any Party may not enter into the Assignment Agreement if such Party does not agree to these Terms and Conditions.
At Buyer’s request, Seller shall issue invoices for Cargo to be purchased by Buyer (each, a “Seller Invoice”) which bear payment instructions substantially in the following form: “Subject only to the terms of any relevant assignment agreement, this invoice is assigned, owned by, and payable only to BlueX Trade, Inc. 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.”
Upon receipt of any Seller Invoice from Seller, Buyer shall provide such Seller Invoice to BlueX. In accordance with and subject to the terms and conditions of any agreement(s) between Buyer and BlueX, BlueX may make payment to Seller in respect of Cargo set forth in such Seller Invoice.
Upon receipt of payment of a Seller Invoice, Seller shall promptly, but in no case later than two (2) business days thereafter, release the Cargo for which payment was made for shipment to Buyer.
- Immediately upon Seller’s receipt of full payment for the Cargo from BlueX, all Receivables related to such Cargo shall, without any further action on the part of any Party or BlueX, be deemed immediately transferred and assigned by Seller to BlueX.
- Each Party acknowledges and agrees that BlueX may at its discretion transfer, assign, or sell the Receivables to any third party.
- If any remittances are made directly to Seller with respect to Cargo for which payment has been made by BlueX, Seller shall hold the same in trust for the benefit of BlueX and will immediately deliver to BlueX the identical checks, documents, instruments, or moneys received in the same form as received by Seller.
- Each Party warrants and represents to the other Party and BlueX that:
- it is a corporation duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation;
- it has full power and authority and has obtained all necessary authorities and consents to enter into and perform its obligations under the Assignment Agreement and such other agreements and arrangements referred to in the Assignment Agreement; and
- the execution, delivery and performance of the Assignment Agreement, and the consummation of the transactions contemplated hereby, do not and will not: (i) result in a violation or breach of any provision of the certificate of incorporation or by-laws of the Party; (ii) result in a violation or breach of any provision of any law or governmental order applicable to the Party; or (iii) (A) require the consent, notice, or other action by any person under or (B) conflict with, result in a violation or breach of, constitute a default under, give rise to any right of termination, or result in the acceleration of, any contract to which it is a Party.
- Seller represents, warrants, and undertakes to Buyer and BlueX that:
- As to each Receivable assigned to BlueX under the Assignment Agreement:
- the Receivable is not yet past due, arose in the ordinary course of Seller's business and represents a bona fide completed transaction;
- the title of Seller to the Receivable is absolute and subject to no assignment, claim, lien, or security interest;
- the Receivable, as shown on Seller’s books and records and on any invoices, bills of lading or statements, delivered to BlueX is a legally enforceable debt owed by Buyer to Seller in its full face amount;
- no partial payment has been made by anyone on such Receivable; and
- no set off, credit, allowance, adjustment, counterclaim, or defense to such Receivable exists or will exist and no agreement has been made or will be made with any person or entity under which any deduction or discount may be claimed on such Receivable;
- Seller shall execute any and all financing statements or other documents or instruments which BlueX deems necessary to protect its interest under the Assignment Agreement;
- Seller’s business is solvent;
- Seller is at the time of assignment of the Receivables to BlueX, the lawful owner of and has good and undisputed title to such Receivable;
- Buyer shall have no right of set-off, abatement, or reduction whatsoever in respect of any Receivable;
- All financial records, statements, books, or other documents shown to BlueX by Seller at any time, either before or after the signing of the Assignment Agreement, are true and accurate;
- Seller will not, under any circumstances or in any manner whatsoever, interfere with any of BlueX's rights under the Assignment Agreement;
- Seller will not factor or sell any Receivable except pursuant to the Assignment Agreement;
- Seller has not and will not transfer, pledge, or give a security interest in any Receivable to any party; and
- Seller will not change or modify the terms of any Receivable without BlueX’s prior consent to such change in writing.
- As to each Receivable assigned to BlueX under the Assignment Agreement:
- In the event of Seller's breach of any of the foregoing representations, warranties, or undertakings, BlueX shall have the following rights and remedies against the Seller, in addition to all other rights under the Assignment Agreement:
- to request return of payment from Seller made by BlueX pursuant to Section 1.2 with an interest of 8% per annum. Such return of payment shall not be deemed a reassignment thereof and BlueX shall retain a security interest in such Receivable until such Receivable is fully paid, settled, or discharged; and
- to enter the premises of Seller and take possession of the Cargo.
- Seller shall immediately notify BlueX in each instance of the return, rejection, loss of, or damage to any merchandise represented by any Receivable, of any request for extension of time to pay or request for credit or adjustment, or of any merchandise dispute or other dispute or claim relating to any Receivable or to the merchandise or services covered thereby or tending in any way to diminish the sum certain payable thereon. If any such dispute, controversy, or claim is not promptly settled by Seller, BlueX may, if it so elects, settle, compromise, adjust, or otherwise enforce or dispose of by litigation or otherwise, any such dispute, controversy, or claim, at Seller's expense, and upon such terms and conditions as BlueX in its sole discretion shall deem proper, but BlueX shall have no obligation to do so. Seller shall not grant any allowances, credits, or adjustments to Buyer, nor accept any return of merchandise, without BlueX's prior written consent in each instance.
- For the avoidance of doubt, any dispute set forth in Section 4.1 shall not affect any of Buyer’s payment obligations to BlueX.
- Seller and Buyer (each, an “Indemnifying Party”) will each indemnify, defend, and hold harmless BlueX, its directors, officers, employees, affiliates, and agents (each, an “Indemnitee”) against any claims, losses, costs, fines, penalties, or damages (including court costs and reasonable attorneys’ fees) or for any injury to any person or their property (collectively, “Claims”) to the extent arising out of or connected with the Indemnifying Party’s (and its affiliates, employees, agents or representatives) (i) negligence or willful misconduct; (ii) material breach of or any provision of the Assignment Agreement; or (iii) failure to comply with its obligations and representations under the Assignment Agreement.
- BlueX agrees to promptly notify the Indemnifying Party upon becoming aware of any Claim, provided, that failure to promptly notify the Indemnifying Party shall not relieve the Indemnifying Party of any liability hereunder. BlueX shall, in a diligent and timely manner, (i) provide the Indemnifying Party with all material information pertaining to a Claim and the Indemnifying Party’s efforts to defend against the Claim; (ii) respond to reasonable inquiries by the Indemnifying Party regarding such Claim or defense and (iii) otherwise cooperate with the Indemnifying Party concerning the resolution of such Claim. BlueX may, in its sole discretion, participate in any defense or settlement of a Claim and/or appoint adequate counsel, at the Indemnifying Party’s sole expense, to defend any Indemnitee against a Claim. The Indemnifying Party agrees not to enter into any settlement, consent or other like resolution of a Claim without the written approval of BlueX. The issuance of such approval shall not waive or otherwise limit the indemnity rights of an Indemnitee under this provision.
- The Assignment Agreement commences on the date first written on the Assignment Agreement and will extend for an initial term of one (1) year (“Initial Term”). Upon the expiration of the Initial Term, the Assignment Agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”), unless Buyer or Seller gives the other Party and BlueX written notice of its intent not to renew the Assignment Agreement at least ninety (90) days prior to the end of the Initial Term or then current Renewal Term. Collectively the Initial Term and Renewal Term are referred to as the “Term” of the Assignment Agreement.
- Either Party may terminate the Assignment Agreement if the other: (a) breaches a material representation, warranty, term, condition, or obligation under the Assignment Agreement, and fails to cure such breach within ten (10) days after receiving written notice of such breach, or (b) the other Party is dissolved, becomes insolvent, files bankruptcy, or generally fails to pay or admits in writing its general inability to pay its debts as they become due. The terminating Party shall give BlueX prompt Notice of any such termination.
Each Party and BlueX shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under the Assignment Agreement (each, a “Notice”) in writing to the address that the receiving party has indicated in the Assignment Agreement or may otherwise designate from time to time in accordance with this Section 7. Each Party and BlueX shall deliver all Notices by personal delivery, internationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Assignment Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section 7.
This Assignment Agreement and the other agreements and documents referred to herein constitute the entire agreement between the Parties with respect to the subject matter hereof and no Party shall be liable or bound to any other Party in any manner with respect to the subject matter hereof by any representations, warranties, or covenants except as specifically set forth herein or therein.
No Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party and BlueX. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder.
This Assignment Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
- Subject to Section 11.2, the Assignment Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person (including, for the avoidance of doubt, Seller) any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of the Assignment Agreement.
- The Parties hereby designate BlueX as third-party beneficiary of the Assignment Agreement having the right to enforce the Assignment Agreement. For the avoidance of doubt, BlueX is not liable to any Party under the Assignment Agreement.
The headings in this Assignment Agreement are for reference only and shall not affect the interpretation of the Assignment Agreement.
This Assignment Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto and consented to in writing by BlueX.
No waiver by any Party or BlueX of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Assignment Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Assignment Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Assignment Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Assignment Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
This Assignment Agreement will be enforced, governed by, and construed in accordance with the laws of the State of California (USA), without giving effect to any conflict or choice of law principles or provisions thereof.
Any legal suit, action, or proceeding arising out of or related to this Assignment Agreement shall be instituted in the federal or state courts located in San Francisco, California (the “Court”) for the first instance, and each Party irrevocably submits to the exclusive jurisdiction of the Court in any such suit, action, or proceeding, provided that such exclusive jurisdiction shall not prevent any Party or BlueX from seeking injunctive relief or similar remedy in any other jurisdiction.
For purposes of this Assignment Agreement, (i) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii the words “herein”, “hereof”, “hereby”, “hereto”, and “hereunder” refer to this Assignment Agreement as a whole. Unless the context otherwise requires, references herein: (a) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Assignment Agreement; (b) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (c) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Assignment Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Assignment Agreement to the same extent as if they were set forth verbatim herein.
This Assignment Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall together be deemed to be one and the same agreement. A signed copy of this Assignment Agreement delivered by facsimile, e-mail, or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Assignment Agreement.
Each Party agrees that the electronic signatures, whether digital or encrypted, of the Parties included in this Assignment Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile or email electronic signatures.