The following terms (these “Accelerated Payment Service Terms”) apply to you if you agree to receive Accelerated Settlements in connection with the JIM.com Service (“Accelerated Payment Services”).
By agreeing to receive Accelerated Settlements, you agree to be bound by these Accelerated Payment Service Terms. These Accelerated Payment Service Terms are legally binding terms between you and CloudWalk Inc. (“Jim.com”, "JIM.com", “JIM”, “we,” or “us”) and our website at www.jim.com, along with our related websites, hosted applications, mobile or other downloadable applications, are subject to the JIM.com General Terms of Service, available at https://www.jim.com/behind-the-curtain/tos (“General Terms”) and the Merchant Agreement, available here (“Merchant Agreement”), and together with the General Terms and these Accelerated Payment Service Terms, the “Terms”).
Unless otherwise stated, capitalized terms used but not defined in these Accelerated Payment Service Terms will have the meanings given to them in the Merchant Agreement, or if none, then the General Terms. In the event of any conflict between these Accelerated Payment Service Terms and the Merchant Agreement or the General Terms, these Accelerated Payment Service Terms will control with respect to the Accelerated Payment Services.
1. Overview of the Accelerated Payment Services
From time to time you may enter into Transactions (as that term is defined in the Merchant Agreement) with your customers (each, an “End Customer”) which result in Receivables being owed to you with respect to that Transaction. Each Transaction involves the sale by you of specific merchandise or services purchased by an End Customer and gives rise to a payment owed to you by the Acquirer, which payment may be impacted by the inability or unwillingness of the End Customer’s bank to pay the Acquirer in connection with the Transaction. By agreeing to these Accelerated Payment Services Terms, you hereby request that JIM.com purchase the Receivable arising out of such Transaction in exchange for immediate payment of the Purchase Price therefore. JIM.com may, in its discretion, purchase from you the Receivable associated with such transaction, on the terms and conditions set forth herein.
2. Offer and Acceptance
Upon initiation of a transaction between you and an End Customer using the Accelerated Payment Services, you automatically shall be deemed to offer to sell to JIM.com the corresponding Receivable, at a price equal to the Purchase Price. JIM.com may accept the offer in its sole discretion by crediting the amount of the Purchase Price to your Balance (as defined in the JIM Visa® Prepaid Cardholder Agreement). As used herein, the “Purchase Price” with respect to any Receivable shall be calculated as follows:
Purchase Price = Face Value - (Face Value x Merchant Discount Rate) - (Face Value x Merchant Fee), in which:
“Face Value” means, with respect to any Receivable, the face amount of the Receivable, which shall be equal to the Transaction amount.
“Merchant Discount Rate” means the rate designated by JIM.com, consisting of interchange fees and other acquiring and card processing fees, according to Network Rules, as may be modified from time to time.
“Merchant Fee” means a fee charged by JIM.com with respect to each purchase of a Receivable hereunder, in the amount designated by JIM.com at onboarding, as may be modified from time to time by notice from JIM.com to you.
3. Purchase and Sale
You hereby agree that, simultaneously with JIM.com’s credit of the amount of the applicable Purchase Price to your Balance, you shall (i) have sold, transferred, conveyed, and assigned to JIM.com all of your right, title, and interest in and to the related Receivable, and (ii) be deemed to have provided notice to the relevant Acquirer of your designation of JIM.com as the entity to receive payment of the Net Face Value of such Receivable. No further writing shall be necessary to evidence such transfer of ownership. Notwithstanding the foregoing, you agree to sign all such other documents, and take all such further actions, as JIM.com may reasonably request from time to time to evidence this transfer of ownership.
4. Servicing of Purchased Receivables
All Purchased Receivables will be serviced, collected, and administered by JIM.com or its designee, with full right to take any action in doing so, including changing the terms of any Purchased Receivables, subject to applicable law. You agree to provide us any assistance we request regarding servicing, collecting, and administering any Purchased Receivables and facilitating payment of any Purchased Receivables.
5. True Sale; Security Interest
The parties hereto agree that each purchase and sale of Receivables under the Terms is intended to be an absolute and irrevocable transfer constituting a “true sale” for bankruptcy law purposes, without recourse by JIM.com to you for any credit risk or financial inability to pay of any third party, including End Customer’s bank. The parties hereto have structured the transactions contemplated by the Terms as a sale, and each party hereto agrees to treat each such transaction as a “true sale” for all purposes under applicable law and accounting principles, including, without limitation, in their respective books, records, computer files, tax returns (federal, state and local), and any applicable regulatory and governmental filings (and shall reflect such sale in their respective financial statements). You will advise all persons inquiring about the ownership of the Receivables that all Purchased Receivables have been sold to JIM.com. If, contrary to the mutual intent of the parties, the purchase of any Purchased Receivable is not characterized as a sale by any applicable court, you hereby grant to JIM.com a security interest in, and right of setoff with respect to, all of the Purchased Receivables and all proceeds thereof to secure the payment and performance of your payment and performance obligations hereunder. The grant of each security interest herein is a supplemental protection to JIM.com and is not meant to negate or affect in any way the intended sale of the Purchased Receivables by you to JIM.com and the fact that the parties intend for the Purchased Receivables to be assets of JIM.com. JIM.com is hereby authorized to file UCC financing statements with respect to the transactions contemplated hereunder, including the security interests granted herein, together with any continuations and amendments relating thereto.
6. General Representations and Warranties
In addition to any and all representations and warranties made in the General Terms or the Merchant Agreement, you make the following representations and warranties to JIM.com on a continuing basis:
a) your execution, delivery, and performance of the Terms have been authorized by all necessary corporate action and do not violate applicable law or the provisions of any agreement to which you are bound;
b) the Terms constitute a legal, valid, and binding agreement by you enforceable in accordance with its terms;
c) you and any of your employees, contractors, and agents have all licenses, registrations, and authorizations required to conduct your and their businesses;
d) any information, materials, data, content, or documents you directly or indirectly provides to JIM.com are true, correct, and complete; and
e) the Terms and the transactions contemplated hereby do not violate the terms of any of your agreements with your End Customers.
7. Representations and Warranties Concerning Purchased Receivables
For each Purchased Receivable, you make the following representations and warranties to us as of the time of purchase of such Receivable by JIM.com:
a) Each such Receivable:
(i) is your exclusive property, free and clear of all security interest, liens or claims of any kind;
(ii) relates exclusively to a commercial trade transaction that complies with all applicable legal requirements;
(iii) represents consideration for a sale of merchandise or services that have been sold to the relevant End Customer in the ordinary course of business;
(iv) constitutes a valid, binding, and unconditional obligation of the relevant End Customer to pay the full amount of such Receivable;
(v) represents part or all of the sales price paid for the purchase by an End Customer from you of specific merchandise or services in Transactions using the Service and is generated by such a sale by you to the End Customer in the associated Transaction;
(vi) is not subject to any Dispute by the End Customer or any other person, and is not the subject of any legal or arbitral proceeding; and
(vii) is freely assignable or transferable (as applicable) and the provisions of the Terms are effective to assign or transfer (as applicable) the relevant Receivable to JIM.com.
b) At the time of purchase of such Receivable hereunder:
(i) you are not and will not be insolvent or unable to pay your debts, nor could you be deemed by a court to be unable to pay your debts, all within the meaning of the law in the jurisdiction of your organization, nor will you become so in consequence of entering into the Terms and/or the transactions hereunder; and
(ii) you are not and will not be an affiliate of any End Customer.
8. Covenants
You covenant to JIM.com as follows:
a) Books and Records. You will treat JIM.com’s purchase of any Purchased Receivables as a sale for tax, accounting, and financial reporting purposes, and your books and records will reflect the sale of the Purchased Receivables to JIM.com.
b) Further Assurances. You will take all actions reasonably requested by JIM.com to preserve and protect JIM.com’s right, title, and interest in and to any Purchased Receivables.
c) No Impairment. You will not take any action (including placing or allowing placement of a lien or security interest on any Purchased Receivables) or make any omission that has, individually or in the aggregate, an adverse effect on any Purchased Receivables or on JIM.com’s ability to collect on any Purchased Receivables.
d) Amounts Received. If you receive any payment on any Purchased Receivable, you must notify JIM.com immediately and remit the amount of such payment to JIM.com within one (1) Business Day of receipt.
e) Taxes. You shall timely pay all federal, state and local taxes and provide written proof thereof to JIM.com upon request.
f) Compliance with Laws. You shall comply with all relevant laws and regulations applicable to the Terms, the Receivables, the Transactions, and any other use of the Service.
9. Repurchase Event
Following the occurrence of any Repurchase Event relating to any Purchased Receivable (such as a Chargeback, as defined in the Merchant Agreement), at JIM.com’s sole discretion, you shall repurchase any such Purchased Receivable by paying the corresponding Repurchase Price to JIM.com. The Repurchase Price will be paid, in JIM.com’s discretion, via (a) setoff of such Repurchase Price from any Purchase Price with respect to any future purchases of Receivables by JIM.com or (b) a deduction of such Repurchase Price from your Balance. If JIM.com determines, in its sole discretion, that the foregoing payment methods will not provide timely payment of the Repurchase Price, then you shall, upon notice from JIM.com, promptly pay the Repurchase Price by depositing such Repurchase Price into an account designated by JIM.com.
10. Indemnification
In addition to any and all indemnification obligations set forth in the General Terms or the Merchant Agreement, you will indemnify, defend, and hold JIM.com harmless against any Losses arising out of or relating to a breach by you of any of your representations, warranties, covenants, or agreements contained in the Terms. JIM.com may set off or cause setoff of any indemnification obligations or other amounts you owe us from any Purchase Price and other amounts owed or to be provided to you.
11. Taxes
You shall pay, and indemnify and hold JIM.com harmless from and against any taxes that may at any time be asserted in respect of the purchase transactions hereunder (including any sales, occupational, excise, gross receipts, personal property, privilege or license taxes, stamp duties or any withholdings (“Taxes”), but not including taxes imposed upon JIM.com with respect to its overall net income) and costs, expenses and reasonable counsel fees in defending against the same, whether arising by reason of the acts to be performed by you hereunder or otherwise. If you or the End Customer shall be required by law to deduct any Taxes from or in respect of any sum payable hereunder (i) the sum payable shall be increased as may be necessary so that, after making all required deductions (including deductions applicable to additional sums payable under this paragraph), JIM.com receives an amount equal to the sum it would have received had no such deductions been made, (ii) you shall make such deductions (unless the End Customer has made such deductions) and (iii) you shall pay (unless the End Customer shall have paid) the full amount deducted to the relevant taxation authority or other authority in accordance with applicable law.
12. Termination
JIM.com may terminate these Accelerated Payment Service Terms for any reason upon thirty (30) days’ prior written notice to you. JIM.com may terminate these Accelerated Payment Service Terms immediately if you breach or fail to perform any of your obligations hereunder. Unless earlier terminated in accordance with this Section, these Accelerated Payment Service Terms will remain in effect until termination or expiration of the General Terms or the Merchant Agreement, whichever is earlier. Following termination of these Accelerated Payment Service Terms, you shall no longer offer Receivables for sale to JIM.com and JIM.com will no longer purchase Receivables from you. Any termination will not affect in any way JIM.com’s rights with respect to transactions that occurred before such termination.
13. Survival
All covenants made herein shall continue in full force and effect so long as any Purchased Receivable remains outstanding. All indemnity obligations and all limitation of liability provisions contained in the Terms shall survive and remain in full force and effect notwithstanding termination of the Terms.
14. Defined Terms
We can terminate or refuse your access to the service at any time, for any reason as described in the Modification; Termination; Suspension; Section of the JIM.com General Terms of Service.
“Business Day” means a day that is not a Saturday, Sunday or United States federal holiday.
“Dispute” means, with respect to any Receivable, any dispute, deduction, claim, offset, defense, counterclaim, discount, allowance, right of recoupment, or warranty claim of any kind whatsoever, including, but not limited to, (i) any Chargeback, (ii) any claims arising out of or relating to the provision of merchandise or services by you to the applicable End Customer, (iii) any dispute or claim pertaining to defective or damaged goods, shipping delays, or other shipping problems, or (iv) any other dispute or claim as to the price, terms, quantity, quality, or arising from any other possible defense to payment (except, in each case, to the extent resulting solely from an Insolvency Event of the applicable End Customer’s bank or the financial inability of the End Customer’s bank to pay such Receivable), regardless of whether the same is in an amount greater than, equal to or less than the Receivable concerned, regardless of whether the same is valid or bona fide.
“Insolvency Event” means, with respect to any Person, such Person (i) is dissolved (other than pursuant to a consolidation, amalgamation or merger); or (ii) becomes insolvent or is unable to pay its debts or fails or admits in writing its inability generally to pay its debts as they become due; or (iii) makes a general assignment, arrangement or composition with or for the benefit of its creditors; or (iv) institutes or has instituted against it a proceeding seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any applicable law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its property and, in the case of any such proceeding instituted against it (but not instituted by it), either such proceeding shall remain undismissed or unstayed for a period of thirty (30) days, or any of the actions sought in such proceeding (including the entry of an order for relief against, or the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its property) shall occur; or such Person shall take any action to authorize any of the actions set forth above.
“Losses” means any claims, liabilities, losses, damages, costs or expenses, including reasonable attorneys’ fees and disbursements, other dispute resolution expenses and costs of collection; provided that, and for the avoidance of doubt, the term “Losses” does not include any credit related losses that may apply to a Receivable from time to time after it is sold under the Terms.
“Person” means any individual partnership, corporation, company, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture, governmental authority or other entity of whatever nature.
“Purchased Receivable” means a Receivable purchased by JIM.com in accordance with the terms and conditions hereof; provided that a Receivable purchased hereunder and subsequently repurchased by you pursuant to the terms and conditions hereof shall, upon receipt by you of the Repurchase Price therefor, cease to be a Purchased Receivable.
“Receivable” means your rights to receive payment in the amount of the Proceeds from the Acquirer (as those terms are defined in the Merchant Agreement) with respect to a Transaction in respect of a bona fide obligation arising out of your provision of specific merchandise and/or services to an End Customer.
“Repurchase Event” means, with respect to any Purchased Receivable, (i) any representation or warranty made by you in Section 7(a) with respect to such Purchased Receivable shall be inaccurate, incorrect or untrue on any date as of which it is made or deemed to be made; (ii) the occurrence of a Dispute with respect to such Receivable (such as in the event of a Chargeback); or (iii) your confirmation or issuance of a refund to the End Customer for, or acceptance of a return of, the merchandise and/or services whose sale gave rise to such Receivable.
“Repurchase Price” means, with respect to any Purchased Receivable, the Purchase Price paid for such Receivable, less any amounts received by JIM.com from the applicable End Customer on account of such Receivable.