Factoring Terms of Service


All capitalized  terms not herein defined shall have the meanings set forth in the Uniform Commercial Code,  as enacted in the State of Delaware (“UCC”). Client and Denim may be collectively referred to  herein as the “Parties” and each a “Party.”  Client may request a copy of this Agreement by emailing Denim at  contact@denim.com. 


1.1. Scope of Factoring Services

1.1.1 Purchase of Accounts. Client agrees to use and appoints Denim as its sole factor. Upon  submission of an Account to Denim, Client conveys, transfers, assigns and sells to Denim as absolute  owner thereof all right, title and interest in all Client’s present and future Accounts owed by  such Account Debtor, together with the proceeds thereof and all of Client’s interest in the  goods or services sold by Client which gave rise to such Accounts. Denim in its sole discretion  may purchase the Accounts offered for sale by Client. Upon receipt by Denim of an invoice and  all supporting documentation required by Denim, including but not limited to bills of lading,  proof of delivery, contracts and purchase orders, Denim will notify Client as to the Accounts  purchased by Denim (“Purchased Accounts”) through the Denim internet based online account  detail (the “Portal”). Client agrees it is engaged in a commercial enterprise and that this  Agreement and the Factoring Services are intended to be an account purchase transaction. It  is the intention of the Parties that the sales of all Accounts constitute true and actual sales of  the Accounts from Client to Denim, and that, upon purchase of a Purchased Account, all right,  title and interest to such Purchased Account, legal and equitable, shall pass to Denim. 

1.1.2 Notification and Verification. For each Account Debtor owing on an Account submitted  by Client to Denim for purchase, whether or not purchased by Denim, all Accounts owed by such  Account Debtor shall be paid directly to Denim. Each such invoice evidencing an Account will  include a notification by Client that the Account has been assigned and conveyed to Denim and  is payable only to Denim. Denim shall have the right to notify all Account Debtors that payment  shall be made exclusively to Denim. Denim shall have the right to verify directly with an Account  Debtor that each Account is valid, is not disputed, and complies with all representations and  warranties regarding such Account as set forth herein and verify that the Account Debtor has  the financial ability to pay the Account (an “Eligible Account”). The determination of an Eligible  Account shall be made by Denim in its sole discretion. Client gives its irrevocable consent and  authorization to Denim to disclose, release and exchange all information regarding Client and to  communicate without limitation as to any matters related to Client with any third parties or any other persons claiming an interest or right in or the Collateral. 

1.2 Advances; Reserves. See Schedule 1 annexed hereto and incorporated as if fully set forth herein by this reference and all additional references.  

1.3 Payments to Third Parties. In addition to the Quick Pay Program (as hereinafter  defined), Client irrevocably authorizes Denim to remit directly, in the sole discretion of Denim, on  behalf of the Client and without further direction from the Client, payments to service  providers involved in the transaction giving rise to an Account, including but not limited to  drivers, carriers, dispatchers and/or independent contractors (the “Payees”), from Advances or  funds that would otherwise be paid to Client. Client acknowledges and agrees that this  payment direction is not an obligation of or guaranty by Denim to make such payments to the  Payees. 

1.4 Repurchase of Accounts. See Schedule 1 annexed hereto. 

1.5 Communications. Communications regarding or related to the Factoring Services may  occur via a variety of electronic communications mechanisms and Client consents to all such  use by the Parties. Client consents to the collection, use and storage of all information related to the Client. 

1.6.  Maximum Amount.  Is the maximum amount of total Accounts Denim will purchase from Client at any one time, subject to change with or without notice. See Schedule 1 annexed hereto.

2. FEES. See Schedule 1 annexed hereto. 


3.1 Collateral. As a protective measure in the event of a characterization of the sale of the  Accounts as a loan, and in order to secure all Obligations of Client to Denim, Client hereby grants  to Denim a first priority and exclusive security interest in all of Client’s existing and later acquired  assets, including but not limited to all Accounts, Chattel Paper (whether tangible or electronic),  contracts and contract rights (including purchase orders) Documents (including bills of lading  and proof of delivery), Equipment, Instruments (including promissory notes), Inventory, Investment Property, Letter of Credit rights, Letters of Credit, all General Intangibles, all  Reserves, and all books and records of Client (whether tangible or electronic) relating to the  assets set forth herein, whenever acquired and whether now or hereafter existing, wherever  located and all Proceeds of each of the foregoing (collectively the "Collateral"). Client hereby  grants Denim the authority to file a UCC Financing Statement in connection with this grant of  security interest in the Collateral. Any unauthorized termination or unauthorized attempt by  Client to terminate Denim’s UCC Financing Statement could result in, at Denim’s sole discretion, a  $2,500 fee per occurrence. 

3.2 Secured Obligations. The Collateral shall secure the payment of all Obligations at any  time owing to Denim, fixed or contingent whether arising under this Agreement, by operation of  law or otherwise. Client agrees that, with respect to the security interest granted by this  Agreement, Denim shall have all of the rights and remedies of a secured party as provided by the  UCC in addition to any and all remedies provided by any other applicable law and all rights and  remedies provided for by this Agreement and by any other agreement; it being understood  and agreed that that the security interest in the Collateral granted hereby secures any and all  present and future Obligations of Client to Denim. In addition, in order to satisfy any of the  Obligations due Denim, Client irrevocably authorizes Denim in its sole discretion to initiate  electronic debit or credit entries through the ACH system to any deposit account maintained  by Client. Client hereby agrees and authorizes Denim to establish an automated clearing house  debit arrangement to facilitate such ACH transfers, and Client shall indemnify and hold Denim harmless from any claims or damages that might arise therefrom.  

4. REPRESENTATIONS, WARRANTIES AND COVENANTS. Client and those principals  and agents authorized by Client to submit Accounts to Denim each make the following  representations, warranties and covenants set forth herein to Denim upon the execution of this  Agreement, each of which shall be deemed to have been made upon the submission to Denim  

of an Account: 

4.1 Client (a) is an entity duly organized, validly existing and in good standing under the  laws of the state of its formation and is qualified and authorized to do business and is in good  standing in all states in which such qualification and good standing are necessary or desirable;  (b) has its principal place of business as set forth herein at the Client’s address and will not  change its address without first giving Denim written notice thereof; (c) is not and has at no time  been affiliated with and does not own, control, or exercise dominion, in any way whatsoever,  over any Account Debtor; and (d) is not insolvent. 

4.2 In connection with the Accounts (a) Client has offered for sale all Accounts of Client; (b)  Client is the sole and absolute owner of each Account offered for sale, each Account offered  for sale is sold free and clear of any liens, security interests or encumbrances and all supporting  documentation for each Account has been provided to Denim; (c) Client has the full legal right  to sell, assign and transfer each Account and such sale, assignment and transfer thereof does  not contravene or conflict with the terms of any other agreement, commitment or instrument  to which Client is a party; and upon Client's delivery of each Account, there will vest in Denim all  of Client's right, title and interest in and to such Account; (d) all terms governing each Account  are accurately reflected in the invoice and supporting documentation and each Account is  undisputed and represents a sum certain owed by an Account Debtor, without offset or  counterclaim and no Account offered for sale has any express or implied condition giving use  to a bill-and-hold, guaranteed sale, sale and return, sale on approval, consignment or any right  to return basis; (e) each invoice clearly sets forth the assignment of the Account to Denim; (f) each  Account represents Client's bona fide sale, delivery and acceptance of merchandise or full and  complete performance of service to an Account Debtor; (g) Client shall not change the payment terms to any Account Debtor; (h) no Account purchased hereunder or any payment  made with regard thereto will at any time during or after termination of this Agreement be  avoidable by any bankruptcy trustee under Title 11 of the United States Bankruptcy Code or by  any creditor, whether under state or federal law, as a preference, fraudulent conveyance or  otherwise; (i) each Account shall be absolutely enforceable against the Account Debtor in  accordance with the express terms of the invoice, whether as to price, terms delivery, guaranty  or quality; (j) Client has or will immediately and in any event not more than twenty-four (24)  hours upon receipt of such information by Client, notify Denim of any dispute, return, rejection,  loss of or damage, any request made by an Account Debtor for an extension of time to pay or  any fact or circumstance with respect to any Account which is likely to effect the sum owing  thereon or any other fact or circumstance that is likely to give rise to any Event of Default; (k)  no Account or product or services billed pursuant to an Account shall be subject to a warranty  or any future performance conditions; (l) no Account is for work in progress or represents  progress billing; and (m) Client has verified the foregoing prior to submission of the Account to Denim. 

4.3 In connection with the records of Client: (a) each fact in any financial record, statement,  books and records or other document Client has provided to Denim, either before or after the  execution of this Agreement, is true and accurate and no information has since come to  Client’s attention to materially affect same; and (b) Client has contemporaneously as to each  Account purchased, made the proper entry on its books and records recording the absolute  sale of such Accounts to Denim. Within three (3) days of a request from Denim, Client shall provide  Denim with a copy of its (i) financial statements; (ii) current customer list and/or debtor aging;  and (iii) federal income tax returns; and (iv) other information regarding Client's business affairs as Denim may request.  

4.4 In connection with operations of Client: (a) no financing statement identifying Client as  Debtor, except as to Denim as Secured Party, is currently existing or may or has at any time 

during  the term of this Agreement been authorized or has been filed in any public office; (b) it is fully  responsible for the acts and omissions of its employees; (c) no Collateral has been sold outside  the ordinary course of Client's business; (d) each individual that submits Accounts has the  power and authority to do so on behalf of Client; (e) it shall at all times execute and deliver to  Denim any and all documents that Denim deems desirable or necessary to effectuate the provisions  of this Agreement; (f) it has no delinquent tax obligations; (g) it has not delinquent labor or  pension obligations; (g) the proceeds of the advances shall be used solely by Client for working  capital purposes in the ordinary course of business; (h) it will not lend any sum of money  whatsoever to any individual or entity (other than advances to Client’s drivers from time-to time in the normal course of Client’s business), nor act as guarantor, surety or endorser without  Denim's prior written consent; and (i) it will notify Denim immediately upon any voluntary or  involuntary bankruptcy petition under the United States Bankruptcy Code filed by or against  Client or any guarantor, or any assignment for the benefit of creditors by Client or any  guarantor. 

4.5 If Client receives an overpayment or other payment of any kind, Client shall  immediately contact Denim (at contact@denim.com or 1-855-250-4142) and pay such  funds, within one business day after receipt by you, to Denim via ACH transfer and if not so  remitted by Client, Denim shall have the right to charge a fifteen percent (15%) misdirected payment fee. 

4.6 Client is duly registered as required by law and has obtained and will maintain all  required licenses, registrations, insurance and/or surety bonds as required or necessary to  operate its business. If Client is a carrier, Client is registered with FMCSA as a for-hire motor Carrier of property in interstate and foreign commerce pursuant to 49 U.S.C. § 13902. If Client  is a broker, Client is duly registered with the appropriate government agencies as a freight  broker. 

4.7 Client represents and warrants that it will act in a thorough and professional manner,  consistent with high professional and industry standards through individuals with the  requisite training, background, experience, technical knowledge and skills. 


5.1 Denim as Service Provider. Denim is an independent provider, performing the Factoring  Service on behalf of Client. The relationship under the Agreement is principally that of seller  and purchaser. Client agrees that there is not now and Client will at no time seek or attempt  to establish, any fiduciary or confidential relationship by Denim as to Client. Nothing in this  Agreement or the transactions contemplated hereunder will be construed as establishing an  employment relationship, joint venture, joint enterprise, partnership, or any other relationship  between the Parties. 

5.2 Portal. Invoices shall be submitted by Client via the Portal. Information regarding the  transactions occurring hereunder will be maintained by Denim and may be available for review  by Client through the Portal. Client acknowledges that information available on the Portal is  real time and subject to further adjustment by Denim pursuant to the terms herein. All of Client’s  rights of access to Denim’s online internet available services shall be provisional and may be  terminated upon an Event of Default. The information Denim makes available to Client online  constitutes and satisfies any duty to respond to a Request for an Accounting or Request regarding a Statement of Account pursuant to § 9-210 of the UCC. 

When using particular Factoring Services, Portal or the website maintained by Denim, Client shall  be subject to any posted rules applicable to the Factoring Services or materials that may  contain terms and conditions in addition to those in this Agreement. All such guidelines or  

rules are hereby incorporated by reference into this Agreement as the “Terms of Service.” Denim  reserve the sole right to either modify or discontinue the Portal or the Website, including any  of the Portal or website’s features, at any time with or without notice to Client. Denim will not be  liable to Client or any third party in connection therewith. Any new features that augment or  enhance the then current Portal or website shall also be subject to these Terms of Service. 

5.3 Authorization to Denim. Client irrevocably authorizes Denim at Client’s expense, to exercise any of the following powers until all of the Obligations have been paid in full: 

5.3.1. Receive, take, endorse, assign, deliver, accept and deposit, in the name of Denim or Client,  proceeds of any Collateral; 

5.3.2. Take or bring, in the name of Denim or Client, all steps, actions, suits or proceedings  deemed by Denim necessary or desirable to effect collection of or other realization upon the  Accounts; 

5.3.3. With respect to any of the following established or issued for the benefit of Client, either  individually or as a member of a class or group, file any claim under (i) any bond or (ii) under  any trust fund; 

5.3.4. Pay any sums necessary to discharge any lien or encumbrance which is senior to Denim’s  security interest in any assets of yours, which sums shall be included as Obligations hereunder;

5.3.5. Process and provide signature (physical or electronic) on the Accounts and associated  paperwork for securing cargo and billing purposes; 

5.3.6. Obtain the necessary certifications, authorities, and other official documents related to  Client as required and applicable. 

5.3.7. In Denim’s own name or on Client’s behalf, with Client to be bound thereby, extend the  time of payment of, compromise or settle for cash, credit, return of merchandise, and upon  any terms or conditions (collectively, a “Settlement”), any and all Accounts and discharge or  release any Account Debtor or other obligor (including filing of any public record releasing any  lien granted to you by such Account Debtor), without affecting any of the Obligations, and  Client acknowledges that all Settlements shall be presumed to be commercially reasonable,  and the burden of proof shall be on Client with respect thereto. 

5.4 Third Party. Client consents to Denim’s use of third party service providers in providing  the Factoring Services and administrating the transactions hereunder. Client acknowledges  and agrees that Denim may (a) sell participation interests in or assign all or any portion of its  rights, obligations and interest under this Agreement and in the Collateral to any Person; (b)  contract with affiliates of Denim to provide servicing of the Client facility and exercise Denim’s rights hereunder. 

5.5 Authorized Persons. Client shall identify at least one individual that is authorized (a)  to submit Accounts and execute documents on behalf of Client in connection with the  performance of this Agreement (excluding authority to change deposit account information);  and (b) to change deposit account information and direct the remittance of funds, provided,  however, that Denim at all times in its sole discretion may rely on authorization received by an 

Denim employee or agent. 

5.6 Agency. Nothing in this Agreement shall be construed to constitute Denim as agent for  Client or to obligate Denim to assume any of Client's obligations with respect to any Account.  Denim shall not assume or create any liability for any error or omission or delay occurring in a  settlement, collection or payment of any Account. Notwithstanding the foregoing, if Client fails  to perform any obligation that Client was required to perform in order to maintain the  obligation of an Account Debtor to make payments on an Account, Denim may perform or retain  others to perform such obligation, at Client's sole expense and such expense shall constitute part of Client's Obligations described hereunder 

5.7 Attorney-in-Fact. In order to facilitate the terms of this Agreement, Client hereby  authorizes and appoints Denim as its lawful attorney-in-fact to collect and receive all payments  from all Customers and to exercise at any time any of the following powers: (i) to receive,  endorse, and deposit in Denim's name all payments received from Customers; (ii) to transmit to  any party notice that Client has granted Denim a security interest in the Accounts or that any  Account has been sold to Denim; (iii) to institute any proceedings deemed by Denim necessary to  effect collection of any Account; (iv) to sign Client's name on any financing statement, or any  amendment or continuation statement thereto with respect to any Account; and (v) to take  any action deemed reasonable to fulfill the terms of this Agreement. 

5.8 Right of Use of Data

5.8.1 To the extent permitted under applicable law, Client expressly acknowledges and  agrees that Client’s information and data that are provided to or made available to Denim under this Agreement, including, but not limited to, information or data related to Client's business,  owners, employees, officers, and agents (hereinafter referred to as “Client Data”) may be  necessary or appropriate for Denim to perform under this Agreement. Client agrees that Denim  maybe collect, store, compile, process, combine, analyze, utilize, license to third parties and use  (hereinafter referred to as “Use” or "Used") Client Data in connection with performing under the Agreement.  

5.8.2 Subject to the terms of this Agreement and to the extent provided under applicable  law, Client expressly acknowledges and agrees that Denim may Use Client Data for (i) the Denim’s  own research, analysis, and business development purposes or (ii) to provide analysis on  performance, underwriting, due diligence, credit risk analysis, funding information decisions  or purposes, and general business trends in the industry (collectively "Company Services") 

which Use shall be the sole property of Denim, provided, however, Denim's Use of such Client Data  shall not disclose to any third party any personally identifiable information of the Client or  persons associated with Client or confidential or proprietary information of Client. Denim will  take reasonable commercial efforts to data anonymize Client Data that is aggregated or  combined with anonymized client data received from other Clients to ensure the protection  of personally identifiable information or confidential or proprietary information of Client. 

5.8.3 Client shall grant a non-exclusive, worldwide, royalty-free license to any Client Data  used by Denim related to or in connection with "Company Services" to improve Denim's products  and services.  

5.8.4 Client represents and warrants to Denim that, except as provided in this Agreement: (i) all  Client Data provided by Client to Denim under this Agreement is the sole and exclusive property  of Client; and (ii) Client owns any and all any intellectual property rights embodied in or  associated with such Client Data. 

5.8.5 Subject to this Agreement, Client Data created by or sourced from Client including,  rights related thereto shall be and remain the property of Client. 

5.8.6 All Client Data Used by Denim under the Agreement shall be protected and treated in the  same commercially reasonable manner of protection as like or similar confidential information  of Denim in light of the nature of the Client Data disclosed by Client in the course of operating under this Agreement. 

6. INDEMNIFICATION. Client will indemnify and hold harmless Denim and its shareholders,  officers, directors, partners, employees, agents, representatives and affiliates (each being an  "Indemnified Party") from and against any and all losses, claims, actions, damages and  liabilities arising under or related to this Agreement or the relationship created by this  Agreement, including but not limited to (i) any action by a third party against Denim that is based  on a claim that any actions performed under this Agreement or any agreements between Client and a third party, infringe, misappropriate or violate such third party’s rights; (ii) any  action by a third party against Denim that is based on any act or omission of Client; or (iii) any  claim by an independent contractor, including but not limited to a claim under the Quick Pay  Program. Client agrees to indemnify and hold Denim harmless from any loss or liability arising  out of the assertion of any avoidance claim and shall pay to Denim on demand the amount  thereof. This Section 6 shall survive termination of this Agreement. 

7. LIMITATION OF LIABILITY. Client’s sole remedy for any breach alleged to have been  committed by Denim of any obligation or duty owed under the Agreement, any other agreement between Client and Denim or any duty or obligation arising out of or related to the Agreement  shall be limited to the amount in the Reserve, which Reserve shall be the amount five (5) days  after the time notice in writing of such breach is first given to Denim. IN NO EVENT WILL DENIM  BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF  ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF DENIM HAS BEEN INFORMED IN  ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. 


8.1. Term. This Agreement will be effective upon execution, shall continue for the Term, and shall be automatically extended for successive Terms unless Denim provides the Client at least Thirty (30) days prior written notice of its intention to terminate this Agreement, or Client provides Denim at least Sixty (60) days prior written notice of its intention to terminate before the end of any Term, whereupon this Agreement shall terminate at the end of the applicable Term.

8.2. Termination. Upon receipt of a written notice of termination, Client shall pay all Obligations to Denim and Denim shall have no duty to thereafter purchase any Accounts from Client. Any  attempted termination of this Agreement other than as set forth herein shall be ineffective,  and this Agreement shall continue in full force and effect as if such attempted termination was  not made. In addition, any notice of termination by Client and notwithstanding payment in  full of all Obligations by Client, is conditioned on Client’s execution and delivery, to Denim, of a  general release in a form satisfactory to Denim. Client understands and agrees that this provision  constitutes a waiver of its rights under §9-513 of the UCC. Denim shall not be required to record  any terminations or satisfactions of any of Denim’ security interests unless and until Client has  executed and delivered to Denim said general release and Client shall have no authority to do so  without Denim’s express written consent.  In the event Denim consents to 

the termination or buyout of the Client’s Obligations, Client shall be subject to an Early Termination Fee irrespective of whether Client is in Default of this Agreement.

8.3.  Early Termination Fee.  See Schedule 1 annexed hereto. 


9.1. Events of Default. The following will constitute an “Event of Default” hereunder: 9.1.1. Client defaults in the payment of any Obligations;  

9.1.2 Client breaches any provision, representation, warranty or covenant set forth herein or  any warranty, representation or covenant is not true, accurate or correct in any respect, or  Client fails to perform any duty hereunder; 

9.1.3 Client fails to submit any Account to Denim or fails to submit accounts for a period of twenty one (21) consecutive days for purchase by Denim or fails to respond to communications initiated  by Denim within three (3) business days; 

9.1.4 any injunction, attachment, judgment or lien shall be filed, occur, arise of attach to any  portion of the Collateral or as to Client, or Client shall fail to pay any federal or state tax or fail  to timely file any tax forms when due; 

9.1.5 the discontinuance or suspension of Client’s present business operations, or a material  adverse change occurs in Client’s financial condition, business or operations, or there is a  change in the control of the ownership or management of Client; 

9.1.6. Client or any guarantor of the Obligations becomes subject to any debtor-relief  proceedings or other insolvency proceedings or are unable to meet debts as they mature; 

9.1.7. Any guarantor of the Obligations fails to perform or observe any of such guarantor's  obligations to Denim or shall notify Denim of its intention to rescind, modify, terminate or revoke  any guaranty of the Obligations, or any such guaranty shall cease to be in full force and effect for any reason whatsoever; 

9.1.8.  Client attempts to terminate this Agreement in contravention of Section 8 herein; 

9.1.9  Client double brokers any load; or

9.1.10. Denim for any reason, in good faith, deems itself insecure with respect to the prospect of  repayment or performance of the Obligations and/or this Agreement. 

9.2. Effect of Event of Default. Upon the occurrence of an Event of Default, and in addition  to any other rights and remedies of Denim: (a) at the sole discretion of Denim, all Obligations owed  to Denim shall be immediately due and payable upon demand by Denim; (b) Denim shall have the  right to charge an additional five percent (5%) Factoring Services Fee (the “Default Rate”),  which Default Rate shall be assessed on the face value of the outstanding Accounts and which  Default Rate shall be in addition to any other fees due to Denim hereunder; (c) Denim shall have the 

right, at its discretion, to cease further advances and/or to terminate this Agreement; (d) Denim 

shall have the right to enforce all lien rights of Client; (e) Client hereby irrevocably authorizes  any financial institution in which it has an account that so much of the funds necessary to cure  Client's breach as set forth in writing by Denim to such financial institution shall be set aside to  and for the exclusive benefit of Denim; and (f) Denim may set off and apply the Collateral to the  payment of Client's Obligations in such order and manner as Denim in its sole discretion shall  determine, or settle, compromise or release, in whole or in part, any amounts owing on the  Collateral, or prosecute any proceeding with respect to the Collateral, or extend the time of  payment of any or all of the Collateral, or issue credits regarding the Collateral or sell, assign  and deliver the Collateral (or any part thereof), at public or private sale and apply the net cash  proceeds resulting from the exercise of any of the foregoing rights or remedies to the payment  of the Obligations, in such order as Denim in its sole discretion, may elect, and Client and any  Guarantor hereof shall remain liable to Denim for any deficiency. Client shall reimburse Denim on  demand for all costs incurred by Denim in the (i) enforcement for payment of the Accounts; (ii)  all fees, costs and expenses of any kind and nature which Denim may incur in the filing notices,  making lien or title examinations; and (iii) protecting, maintaining, preserving or enforcing  agreements relating to the Accounts or any other matters related to this Agreement, all of which shall be added and deemed part of Client's Obligations hereunder.  


In the event Client offers a quick pay option to its independent contractors (the “Quick Pay  Program”), Client agrees that Denim may pay independent contractors, including but not limited  to carriers and dispatchers, participating in such Quick Pay Program directly from Advances  under the terms and conditions herein. Denim must receive the following documentation  regarding each independent contractor participating in the Quick Pay Program: (A) for the  initial Quick Pay Program set up on the Denim on-line system: (1) bank account information; (2)  copy of a voided check from the independent contractor bank account; (3) Quick Pay Terms  and Conditions executed by independent contractor; and (4) upon request by Denim, a copy of  the agreement between Client and the independent contractor; and (B) for each payment  request by Client under the Quick Pay Program: (1) the amount owed to the independent  contractor for each invoice based on the terms and conditions of the agreement between the  Client and independent contractor; and (2) valid independent contractor invoices with  supporting documentation; and (C) at all times: (1) a copy of any Notice of Assignment under  UCC §9-406 received by Client in connection with any independent contractor participating in the Quick Pay Program; (2) notice of a Quick Pay Program termination by an independent  contractor; and (3) any other documentation that Denim may request in connection with the  independent contractor (collectively the “Contractor Quick Pay Documentation”). Client covenants and agrees that the Contractor Quick Pay Documentation and all information provided by Client to Denim regarding each independent contractor shall be true, accurate and correct in all respects. Client agrees that Denim may communicate directly with each independent contractor and may obtain directly from independent contractor any documentation needed to effectuate the quick pay payments, including but not limited to documentation required by Denim to make payments directly to such independent contractor on behalf of Client and to ensure that Denim has a priority secured interest in all Accounts. Client shall ensure that all Accounts submitted to Denim for which Client is requesting direct payment to an independent contractor under the Quick Pay Program shall be Eligible Accounts as defined herein. Client acknowledges and agrees that in the event Client has received a Notice of Assignment under UCC §9-406 or other legally enforceable direction of payment as to any  independent contractor, such independent contractor is not eligible to receive a direct payment from Denim and Client will not submit Contractor Quick Pay Documentation for such independent contractor.  

Client hereby irrevocable authorizes and directs Denim to remit Advances that would 

otherwise  be paid to Client directly to an independent contractor participating in the Quick Pay Program. Client acknowledges and agrees that Denim may remit such payments at the sole discretion of  Denim and as and to the extent funds are otherwise available to be paid to Client. Client further acknowledges and agrees that each payment made to an independent contractor is to be paid by Denim from funds otherwise due and owing Client under this Agreement and is not a  guaranty of payment or an assumption by Denim of any obligations owed by Client to an independent contractor. Client acknowledges and agrees that Denim, in its sole discretion, may pay an independent contractor even if funds are not currently due to Client and Client shall be liable to Denim for any such payments. Client shall remain liable for the full and indefeasible payment and performance of the Obligations under the Factoring Agreement. Client agrees to pay any associated fees relative to the Quick Pay Program. Nothing set forth in this provision limits the rights of Denim as set forth in Section 1.3 hereof. 


11.1 Assignability. Client may neither assign nor transfer any of its rights nor delegate any  of its duties under the Agreement. Denim shall have the right at any time to assign and delegate  all or any portion of its rights and duties under this Agreement.  

11.2 Entire Agreement. This Agreement contains the entire understanding of the Parties  hereto and relating to the subject matter hereof and is the final and complete expression of  their intent.  

11.3 Amendments. No amendment, modification or waiver, oral or otherwise, with respect  to any provision will be effective unless the same is in writing and executed by an officer of  Denim and no email correspondence shall be considered a writing for purposes of an  amendment, modification or waiver hereof. 

11.4 No Waiver. No failure or delay on Denim’s part in exercising any right, power or remedy  granted to Denim hereunder will constitute or operate as a waiver thereof, nor shall any single or  partial exercise of any such right, power or remedy preclude any other or further exercise  thereof or the exercise of any other right set forth herein.

11.5 Counterparts. This Agreement may be executed in any number of counterparts, each  of which so executed shall be deemed an original and constitute one and the same agreement  and may be by facsimile or by electronic transmission of a portable document format file or  equivalent (also known as a "PDF file"), which shall be effective as delivery of a manually  executed original counterpart of this Agreement. Client may also execute this Agreement by  electronically accepting this Agreement. 

11.6 Severability. In the event any one or more of the provisions contained in the  Agreement shall, for any reason, be held to be invalid, illegal or unenforceable in any respect,  such invalidity, illegality or unenforceability shall not affect any other provision hereof, and the  Agreement shall be construed as if such invalid, illegal or unenforceable provision had never  been contained herein. 

11.7 Construction. This Agreement is made and entered into for the sole benefit of the  Parties hereto and the Parties have read this Agreement, understand its contents, and  represent that each has full and complete authority to sign this Agreement and that the  execution, delivery and performance hereunder has been duly authorized by each Party as  well as each of the 

Parties hereto has had an opportunity to consult with its respective legal  counsel prior to executing this Agreement. 

11.8 No Reliance. Client specifically acknowledges and agrees this Agreement is executed  freely and voluntarily and without reliance upon any statement or representation of Denim or  any of Denim’s attorneys, agents, or other representatives in connection therewith except as set  forth herein and there are no and Client is not relying on any written or oral representations  not expressly written in this Agreement. 

11.9 Force Majeure. In the event Denim is unable to carry out its obligations under this  Agreement due to reasons beyond its reasonable control, it is agreed that the obligations of  Denim hereunder shall be suspended during the continuance of such inability, Denim shall not be  liable for damages, and Client shall not be entitled to any refund of amounts paid, provided,  however that such cause shall be remedied as soon as commercially practicable. 

11.10 Election of Remedies. Except as expressly set forth in this Agreement, the exercise by  Denim of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or available at law or in equity. 

11.11 Notices. All notices required or permitted under this Agreement will be in writing and  delivered by (i) confirmed facsimile transmission, (ii) courier or nationally recognized overnight  delivery service, or (iii) certified mail, and in each instance will be deemed given upon receipt.  All notices to Denim will be sent to: 

Attn: Denim 

205 Hudson St, Floor 7 

New York, NY 10013 

All notices to Client will be sent to the address provided by Client on the signature page hereof  or otherwise in writing and acknowledged by Denim. Communications which by their nature  relate to the day-to-day activities of the Factoring Service may be delivered in electronic form,  provided, however, that no email correspondence shall constitute written notice as may be required under this Agreement.

11.12 Modification of this Agreement. Denim reserves the right, at Denim’s sole discretion, to  modify this Agreement on a going-forward basis at any time, with or without prior notice, and  such changes will be effective upon the earlier of Client’s (i) first use of the Factoring Services with actual notice of such change, (ii) consent to such changes via a written amendment  hereto, or (ii) 30 days from posting of such change on the Portal. Client’s use of the Factoring  Services following the date that any such change becomes effective constitutes an agreement  to be bound by the modified Agreement. If Client does not agree to the modified Agreement,  its sole and exclusive remedy is to terminate this Agreement in accordance with the termination provisions hereof. 

11.13 Waiver. The waiver of any breach of any provision of this Agreement will not constitute  a waiver of any subsequent breach of the same nature and does not constitute a waiver of  other provisions hereof. A waiver is only effective if it is in writing and signed by the waiving  Party. 


11.14.1 GOVERNING LAW & JURISDICTION. This Agreement shall be governed by and construed in  accordance with the laws of the State of Delaware in all respects, including but not limited to  the construction, validity and interpretation of this Agreement and the performance of the  obligations imposed by this Agreement, without reference to any conflict of law provisions or  decisions. Client hereby consents to the exclusive jurisdiction of any state or federal court  sitting in Kent County, Delaware (the “Chosen Forum”) in any action or proceeding the subject  matter of which arises out of or relates, directly or indirectly, to this Agreement and each of the  Parties agree that all claims in respect to any action or proceeding shall be heard and  determined exclusively in the Chosen Forum. Client further waives any objection or right it  may have to seek a change of venue based on lack of personal jurisdiction, improper venue,  forum non conveniens or otherwise. Client hereby waives personal service of the summons,  complaint and other process issued in any such action or suit and agrees that service of such  summons, complaint and other processes may be made by certified mail addressed to Client at  the address of Client set forth in this Agreement and that service so made shall be deemed  completed upon the earlier of Seller's actual receipt thereof or 3 days after deposit in the  United States mail, proper postage prepaid. Nothing in this Agreement shall be deemed or  operate to affect the right of Denim to (i) serve legal process in any other manner permitted by  law, or (ii) to preclude the enforcement of any judgment or order obtained in such forum or  the taking of any action under this Agreement to enforce same in any other appropriate forum  or jurisdiction; or (iii) proceed against the Collateral in any other appropriate forum or  jurisdiction. 


11.14.3 ATTORNEY’S FEES. Client agrees to reimburse Denim for all reasonable attorney’s fees, court  costs and other expenses incurred by Denim arising under or related to this Agreement.  Notwithstanding the existence of any law, statute or rule, in any jurisdiction that may provide  Client with a right to attorney’s fees or costs, Client hereby waives any and all rights to hereafter seek attorney’s fees or costs thereunder. 


WITNESS WHEREOF, the parties have executed this Account Purchase and Factoring  Agreement as of the date executed or otherwise accepted by Client. 

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