On the Date of Purchase (“Effective Date”) Company Name as defined on the Order Form (“You”, “Your”, or “Client”), with its principal office at the Company Address listed in the Online Client Portal and TRANSWORLD SYSTEMS INC. (“TSI”), a California corporation with an office located at 500 Virginia Drive, Suite 514, Fort Washington, Pennsylvania 19034 hereby enter and agree to the Terms of Use and Service Agreement below (collectively, the “Agreement”). Client and TSI shall be collectively referred to herein as the “Parties”.

WHEREAS, Client has certain accounts that are due and uncollected (“Accounts”); and

WHEREAS, Client seeks to hire TSI to provide collection services for Accounts through TSI’s Rocket Receivables on the terms and conditions set forth herein.
                 
NOW, THEREFORE, in consideration of mutual covenants and agreements, the Parties agree to the following terms and conditions to provide the collection services requested in the Order Form (“Order Form”) submitted via Rocket Receivables’ website:

TERMS OF USE

These TSI terms of use apply to your use of: a) TSI’s website(s) located at www.RocketReceivables.com. Rocket Receivables can also be accessed through approved third-party websites and applications (through “Rocket Receivables Partners”). Please review these Terms of Use (these “Terms”) and Service Terms (the “Service Terms”) carefully, because they govern your use of TSI’s Site and Rocket Receivables. To make these Terms easier to read, the Site, Rocket Receivables, and all related services provided by TSI, including the services described in the Agreement below, are referred to collectively as “Services”.

  1. Agreement to Terms.  Your permission to access and use TSI’s Services is conditioned upon your agreement to be bound by these Terms and Agreement. If you do not agree to be bound by these Terms and Agreement, then you do not have permission to access or use TSI’s Services. By accessing or using TSI’s Services, or by clicking “accept” or “agree”, you acknowledge and agree that you have read, understand, and agree to be bound by these Terms and the terms of the Agreement. Please review the Terms and the Agreement carefully, as they include, among other things, AN ARBITRATION AGREEMENT WHICH CONTAINS A CLASS ACTION WAIVER IN SECTION 4(T), BELOW.  TSI reserves all rights not expressly granted to you. If you wish to use TSI’s Services in a way not authorized by the Terms or Agreement, you must receive TSI’s permission prior to such use.
  2. Changes to Terms or Services.  TSI reserves the right to modify or terminate the Terms or Agreement, at any time, without prior notice, and at TSI’s sole discretion. The modified version of the Terms (“Modified Terms”) shall be posted on the Site. You agree that you will periodically review these Terms. TSI may also, at its sole discretion, notify you of Modified Terms through direct communication, such as by email or account notifications. It is important for you to review Modified Terms, because your continued use of TSI’s Services after TSI posted the Modified Terms will indicate that you agree to be bound by such Modified Terms. If you don’t agree to be bound by any posted Modified Terms, your permission to access and use the Services will be revoked and you agree to thereafter cease all access to and use of the Services and to terminate your Account (defined below). Because TSI’s Services continue to evolve over time, TSI may change or discontinue all or any part of the Services. TSI reserves the right to make such changes or discontinuations at any time, without prior notice, and at our sole discretion.
  3. Who May Use TSI’s Services.  You may use the Services only if you are 18 years or older, a business entity seeking to collect accounts receivable due and owing to you, and you or your principals are not barred from using the Services by applicable law. TSI’s Rocket Receivables and Services are maintained for the benefit and participation of individual clients only, and each client may place an account for collections only once. Duplicate Accounts placed with TSI will be subject to cancellation.
  4. United States Only.  TSI’s Rocket Receivables and the Services are administered in the United States (“US”) and are solely intended for US users. You may not use TSI’s Rocket Receivables or the Services in any jurisdiction where offering, accessing or using TSI’s Services would be illegal or unlawful.
  5. Registration and Account Upload.  If you want to use Rocket Receivables or TSI’s Services, you will need to create a TSI account in TSI’s Online Client Portal (“OCP”). You can do this via the Site.  You can upload accounts for TSI to deliver its Services by providing TSI with accurate, complete, and up-to-date information for your company’s accounts receivables and you agree to update such information, as needed, to keep it accurate, complete, and up-to-date. If you do not, TSI reserves the right and may choose to suspend or terminate its relationship with you. If you connect to TSI’s OCP, the collection, use, and disclosure of data from or about the OCP is deemed Confidential Information (as defined below) and governed by the terms of this Agreement and the privacy policy available at https://www.rocketreceivables.com/privacy-policy, including terms related to confidentiality and intellectual property rights. You agree not to disclose your Account password to anyone and you will notify us immediately of any unauthorized use of your Account. You will be responsible for all access and activity that occurs through your account, whether you know of or have authorized such activity.
  6. Audit Rights. TSI reserves the rights to audit any and all Accounts placed with TSI via the OCP at any time and without notice. In the event such an audit reveals discrepancies or possible inaccuracies in data uploaded to TSI’s OCP, TSI’s Services may be delayed or terminated pending completion of the audit.
  7. Rocket Receivables Partners. Rocket Receivables may be provided by sponsors and promotion partners of TSI including Rocket Receivables Partners. These partners are independent entities and TSI is not responsible for the nature or quality of products or services provided by those partners or otherwise. TSI shall have no liability for these third parties, including withdrawal from the Rockets Receivables by such partners or for changes or cancellations caused by such partner withdrawals, or discontinued service by partners.
  8. Feedback. TSI welcomes feedback, comments, and suggestions for improvement to the Services (“Feedback”). You can submit Feedback by emailing TSI at Help@RocketReceivables.com or through TSI’s OCP. You hereby grant TSI a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable, and transferable license under any and all intellectual property rights that you own or control, to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose.
  9. General Prohibitions.  You agree not to do any of the following: (i) violate any applicable law or regulation; (ii) send or provide any illegal content through the Services; (iii) use, display, mirror or frame the Services, or any individual element within the Services, any TSI trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, (iv) access, tamper with, or use non-public areas of the Services, TSI’s computer systems, or the technical delivery systems of TSI’s providers, (v) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented to protect the Services or TSI’s Content; (vi) use Services or TSI’s Content for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms; (vii) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or the Content; (viii) interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; (ix) use manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” the Services or any related data or information; (x) disable or circumvent TSI’s API usage safeguards or make calls to TSI’s API other than those authorized in TSI’s API documentation; ; or (xi) encourage or enable any other individual to do any of the foregoing.
  10. Content and Content Ownership.  For the purposes of these Terms: “Content” means text, data, information, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials; “TSI’s Content” means any Content that is posted, generated, provided, or otherwise made available by TSI through the Services; “User Content” means any Content that you provide to TSI or TSI Partners through access to or use of the Services. TSI does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights you may have to use and exploit your User Content. Subject to the foregoing, TSI and its licensors exclusively own all right, title, and interest in and to the Services and TSI Content, including all associated intellectual property rights. You acknowledge that the Services and TSI Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services or Content.
  11. TSI Content License. Subject to your compliance with these Terms, You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services or TSI Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by TSI or its licensors, except for the licenses and rights expressly granted in these Terms.
  12. User Content License.  By making any User Content available through the Services you agree to and hereby grant TSI a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display and perform, and distribute your User Content (i) in connection with operating and providing the Services and TSI Content to you and (ii) to third parties, as instructed or requested by you.  You are solely responsible for your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content granted under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by TSI on or through the Services will infringe, misappropriate, or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
  13. No Legal Advice.  TSI’s Content and Services may include information that is legal or regulatory in nature. Such Content is for information purposes only. TSI does not provide legal or regulatory advice, and your use of the TSI Content or Services does not create an attorney/client relationship or fiduciary or other obligation. If you have any questions regarding your legal rights, or regarding any laws or regulations, you should seek the advice of your attorney.
  14. Enforcement Rights.  Although TSI is not obligated to monitor access to use of the Services or TSI Content or to review or edit any Content, TSI reserves the right to do so for the purpose of operating the Service, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. TSI reserves the right, but is not obligated to remove or disable access to any Content, at any time and without notice, including, but not limited to, if TSI, at its sole discretion, considers any Content to be objectionable or in violations of these Terms. TSI has the right to investigate violations of these Terms or conduct that affects the Services. TSI may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
  15. Termination. TSI may terminate your access to OCP, and access to and use of the Services, at its sole discretion, at any time, and without notice to you. You may cancel your OCP Account by accessing and selecting to terminate your Account through the Site pursuant to the terms termination provisions below in the Terms of the Service Agreement. Upon any termination, discontinuation, or cancellation of Services or your Account the following provisions of the Terms of Use will survive: “Feedback,” “Content and Ownership,” “User Content License,” “Termination,” “Disclaimers,” “Limitation of Liability,” “Dispute Resolution,” and “General Terms.”
  16. Changes. Notwithstanding the provision of the “Changes to Terms or Services” section above, if TSI changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending TSI a written notice (including by email at Help@RocketReceivables.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of any TSI email that may be submitted to you to provide notice of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and TSI in accordance with the provisions of the “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

SERVICE AGREEMENT

1. STAGE ONE – FIXED-FEE SERVICES

  1. Fixed-Fee Services. TSI agrees to perform first party collection services for Accounts placed by Client, on behalf of and in the name of Client (“First Party Services”) and third party collection letters on TSI’s letterhead (“Third Party Services”). TSI will perform First Party Services and Third Party Services (collectively, “Stage One Services”) by written letter sent via First-Class U.S. Mail postage prepaid.  In addition to other terms and conditions of this Agreement, TSI’s Stage One Services are subject to the following:
    1. The fee for Accounts placed with TSI’s Stage One Services is identified in the Order Form’s Purchase Summary;
    2. The placement date (“Placement Date”) shall be two days after Client places an Account with TSI via TSI’s Online Client Portal (“OCP”);
    3. Client grants TSI a non-exclusive, worldwide license to use Client’s name, trade name, service mark, and trademark;
    4. Client shall provide TSI sufficient and accurate Account data pursuant to Section 4(B);
    5. Client shall maintain up-to-date Account data; and
    6. Client approves, and shall be responsible for, the style and content of letters sent in connection with First Party Services.
  2. Transfer of Accounts. At the conclusion of TSI’s Stage One Services Client may transfer Accounts that remain unpaid to TSI’s third party contingency fee collection services (“Stage Two Services”).
  3. FPS Term. Stage One Services’ term is 24 months from Effective Date (“Stage One Term”).  Client is not entitled to a refund for Accounts cancelled or not placed with TSI during the Stage One Term.

2. STAGE TWO: THIRD PARTY CONTINGENCY COLLECTION SERVICES

The following terms and conditions govern Accounts placed with TSI’s third party contingency collections services (“Stage Two Services”):

  1. Online Client Portal. Client can place Accounts for Stage Two Services via the OCP. Client shall upload sufficient information, media, and documents to support debt Client claims is owing on Accounts placed with TSI. Client shall update Account information in OCP when Accounts are transferred to Stage Two Services from Stage One Services, and at any other point Account information becomes inaccurate.
  2. Stage Two Services’ Fees. TSI’s fee for Accounts placed in Stage Two Services shall be a 50% commission on amounts collected; provided however, Accounts must be placed with Stage One Services when an Account is less than 90 days past due from either the last payment date or, in the event of nonpayment, the last date Client charged the Account. Client agrees that TSI is entitled to its full commission for Stage Two Services on funds recovered from Accounts less than 90 days past due. Client further agrees that the rate of 50% commission shall be due on each Account that is delinquent in excess of three months. A commission rate of 50% shall be due on funds received on the following:
    1. Accounts that are undeliverable or mail returns from Stage One Services;
    2. Accounts submitted by TSI to another agency;
    3. Accounts submitted by TSI to an attorney for legal review and possible legal action as contemplated hereunder;
    4. Accounts under $50; and
    5. Accounts directly placed with Stage Two Services, and not placed with Stage One Services.
  3. Stage Two Services’ Payments and Chargebacks. TSI shall remit the net amount collected to Client on a monthly basis.  Interest earned on funds received and held by TSI for Client’s benefit shall be owned and retained by TSI. Client agrees and authorizes TSI to withhold and offset remittances to Client for amounts corresponding to Account stop payments (“Stop Payments”), NSF and bounced checks, and payments charged back to TSI (“Returned Payments”) (collectively Stop Payments, NSF and bounced checks, Returned Payments are referred to herein as “Chargebacks”) and for accounts receivable balance for other TSI services. In the event that TSI is unable or chooses not to withhold and offset funds generated by Stage Two Services, Client shall be responsible for any accounts receivable balance owed and reimburse to TSI for amounts remitted to Client corresponding to Chargebacks.
  4. Settlement Authorization. TSI is authorized to negotiate and settle Client’s Accounts from 100 percent to 100 percent of the balance due at the time of TSI’s offer to resolve an Account. This is the settlement amount. TSI will not agree to a lesser settlement amount without Client’s prior written consent.
  5. Forwarding Accounts to Third Parties. TSI is authorized to forward Accounts to third parties, attorneys, and collection agencies for collection, including, in the referring attorney’s discretion, the filing of legal proceedings. Prior to TSI placing Accounts for legal action, Client shall provide media and documents from origination of Accounts through the Placement Date to substantiate and support the debt owed to Client. TSI agrees to advance court costs associated with filing legal action. From the first funds recovered on Accounts forwarded to attorneys, TSI shall be reimbursed for costs and expenses incurred; thereafter, funds received shall be distributed in equal amounts between TSI and Client. Wisconsin creditors must issue suit authorization for each Account individually. Notwithstanding anything to the contrary herein, in the event of termination of this Agreement or cancelling an Account from legal action, Client shall pay the costs TSI advanced.
  6. Partial Consideration. Client represents and warrants that it is authorized to add interest to the amount owing and authorizes TSI to collect interest on Accounts pursuant to applicable law. Client has the lawful right to collect interest on Accounts, and as partial consideration for the services provided by TSI Client pays all interest collected to TSI.
  7. Cancellation of an Account. Notwithstanding Client’s obligation to cancel Accounts via the OCP, Client shall also send a second, separate written request to TSI to cancel an Account placed in Stage Two Services. Accounts shall be cancelled only upon written acknowledgment by TSI (“Cancellation Date”). Except for a Client residing in Wisconsin, TSI, in its sole discretion, may apply a cancellation fee (“Cancellation Fee”) for Accounts uncollected on the Cancellation Date. The Cancellation Fee shall be equal to 25% of the total amount due on the later of Placement Date or date Account is transferred to Stage Two Services. The Cancellation Fee shall be due and payable within 15 days of the Cancellation Date. TSI shall be entitled to offset the Cancellation Fee and other amounts due from any funds due Client. With respect to Accounts cancelled by Client after TSI received a partial payment or the promise or commitment from a debtor or other individual or entity to make a payment on an Account (“Committed Account”), Client, other than a Client residing in Wisconsin, shall:
    1. Authorize TSI to continue collection activities with respect to the Committed Account per the terms of this Agreement; or
    2. Pay TSI a fee equal to the total amount due TSI in the event of successful collection of the Committed Account’s entire balance as of the Cancellation Date.
  8. Finality of Accounting. Client will examine each TSI monthly fee statement summary and raise any objections in writing within 30 days after the receipt of each statement summary. Client’s failure to timely object to TSI’s accounting shall be deemed a full and final acceptance of TSI’s monthly fee statement summary. Any amount payable under this Agreement and not paid within 30 days shall be delinquent and bear interest at the lesser of 1½% per month or the maximum monthly rate allowed by applicable law.

3. GUARANTEE FOR STAGE ONE SERVICES

  1. Guarantee. If Client uses Stage One Services in accordance with the terms of this Agreement, TSI guarantees that Client will receive a minimum of two times the total purchase price paid by Client for Stage One Services (as agreed to on the Order Form) by the end of the Stage One Term, as applicable. For purposes of the guarantee, the term “receive” shall be calculated to include the full amount remitted to Client from Stage One Services. The guarantee is subject to the following terms and conditions:
  2. Accounts placed with TSI’s Rocket Receivables Stage One Services must be:
    1. placed on the Effective Date;
    2. accurate and complete, with correct Account holders’ full name, last known address, last known telephone number, account number, last payment date, date of default, amount owed at default, and the date and amount of payment or credit applied after default;
    3. in the case of Stage One Services, less than six months from the last date of payment received by Client or date the Account holder incurred the principal amount of the debt; and
    4. Accounts that are not subject to bankruptcy protection, the Account holder has been deemed insolvent, or under the control of a trustee or receiver.
  3. The guarantee for Stage One Services shall only apply if Accounts placed with TSI have an average principal balance equal to or greater than $75.
  4. The guarantee for Stage One Services is void and does not apply if 5% or more of Accounts placed for Stage One Services result in Account holder disputes, undeliverable mail returns, or in the case of First Party Services, incorrect or unusable telephone numbers.
  5. If a letter sent via the Stage One Services is undeliverable or returned to TSI, TSI will notify Client and cancel that Account. Upon placement of a reorder, Client may order Stage One Services for Accounts cancelled due to mail return or expiration, at the then prevailing rate.
  6. If the guarantee is not met TSI will, at its option, refund either:
    1. amount paid by Client for Stage One Services; or
    2. the difference between two times amount paid by Client for Stage One Services and total amount collected by TSI through Stage One Services and Stage Two Services.
  7. TSI’s guarantee shall be void if this Agreement is terminated by either party.

4. MISCELLANEOUS TERMS AND CONDITIONS

  1. Online Client Portal. The signature of Client or Client’s representative on this Agreement authorizes the OCP user(s) to have access to the OCP. TSI will provide website user(s) an OCP user identification (“User ID”) and password, which could allow a user to access information that may be confidential, sensitive or private to Client or TSI. Client agrees to take appropriate steps to safeguard OCP information from unauthorized use and disclosure. Client agrees to release, indemnify, defend and hold harmless TSI, its agents and affiliates from any Claims (defined below) arising from or relating to use of the OCP, OCP User ID, and password. Client agrees that e-mail address(es) furnished to TSI will be used for communicating important information to Client, and Client represents and warrants that it has authority to provide TSI the e-mail address(es) and such e-mail address(es) are hosted in a secure environment.
  2. Sufficient Account Data.  Client shall provide sufficient Account information on or before the Placement Date.  Sufficient Account information includes, but is not limited to, Account holders’ full name, last known address, last known telephone number, account number, date of default, amount owed at default, and the date and amount of payment or credit applied after default. Client shall also maintain commercially reasonable documentation that supports the debt owed on an Account. Within five days of TSI’s request, Client shall provide documentation supporting the debt owing on an Account. Unless requested by TSI, Client will not forward its original Account documents to TSI. TSI may, in its sole discretion, reject or cancel an Account due to Client’s inability to comply with this Section.
  3. Direct Payments and Credits. Client shall notify TSI within five days of receiving direct payments or crediting an Account after the Placement Date.   Client agrees to release, indemnify, defend and hold harmless TSI, its agents and affiliates from Claims (defined below) arising from or relating to Client’s failure to comply with this Section.
  4. Confidential Information.Confidential Information” means non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary.  Confidential Information of TSI includes, without limitation, any software code and algorithms, methods, techniques, and processes revealed or utilized therein in performing the services under this Agreement. Confidential Information of Client includes Account data. Confidential Information does not include information that: (i) is or becomes known to the public without fault or breach of the recipient; (ii) the disclosing party regularly discloses to third parties without restriction on disclosure; (iii) the recipient obtains from a third party without restriction on disclosure and without breach of a non-disclosure obligation known to recipient; or (iv) is independently developed by the recipient without use of Confidential Information. The Confidential Information disclosed under this Agreement may be used, disclosed or reproduced only to the extent necessary to further and fulfill the purposes of this Agreement.  Except as otherwise permitted under this Agreement, the recipient of Confidential Information will not knowingly disclose to any third party, or make any use of the other party’s Confidential Information.  The recipient will use at least the same standard of care to maintain the confidentiality of the other party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, and in no event less than reasonable care.
  5. Client Representations and Warranties. Client represents and warrants that Client originated all Accounts placed under this Agreement and all Accounts are documented, valid debts with no legal or ethical impediment to collection, including but not limited to: debtor bankruptcy; attorney representation of debtor; or known inaccuracy of amount claimed. Client represents and warrants that it has and maintains original media and documents that support the debt due on Accounts. Moreover, Client represents and warrants that the balance amounts are lawfully owed.  Client represents and warrants that it did not purchase Accounts placed with TSI, or that it disclosed the purchase of Accounts and maintains chain of title documentation and other media supporting its ownership of Accounts.  In addition, Client represents and warrants that it shall keep TSI apprised of adjustments to the balance of an Account. Client represents and warrants that it will not transfer, assign or place an Account with any other person or entity for collection, First Party Services, or undertake activities in its own name to collect the debt owed on an Account. Unless specifically notated, Client further represents and warrants that Accounts forwarded to TSI for Stage One Services in default. Client represents and warrants it has the authority and ability to use TSI’s OCP and TSI’s other software systems to process Account information. Client acknowledges that TSI’s systems and procedures employed by TSI are confidential and TSI’s sole property. Client agrees not to disclose to any person or entity information it receives concerning TSI’s systems and procedures, TSI’s business practices and other trade secrets or TSI’s Confidential Information. Client shall not disclose, provide, or otherwise make available to third parties, in whole or in part, this Agreement.
  6. Intellectual Property. Account information provided by Client shall remain Client’s property.  TSI does not sell or share Client’s Account information with third parties.  TSI shall own all materials, documents, ideas developed and used by TSI to perform the Stage One Services and Stage Two Services (whether tangible or intangible), including but not limited to works of authorship related to Stage One Services, Stage Two Services, programs, listings, printouts, software, ideas, discoveries, algorithms, processes, notes, flow charts, programming aids, hardware, equipment, specifications, sample and other correspondence, training materials, manuals, reports, forms, accounting and other records, schedules, diagrams, drawings, documents, memoranda and questionnaires, and other technical information, trade secrets, object and source code, intellectual property or other Confidential Information.
  7. Indemnification. Except as covered by Client’s indemnity below and as otherwise provide in this Agreement, TSI shall indemnify, defend with counsel of TSI’s choice who is reasonably satisfactory to Client, and hold Client harmless against claims, demands, causes of action, fees, liabilities, damages, losses, expenses (collectively, “Claims”) to the extent caused by TSI’s breach of its obligations under this Agreement. Client may, at its option and its expense, participate through its own counsel in the defense of any such action or proceeding hereunder. Except as covered by TSI’s indemnity, Client shall defend with counsel of Client’s choice who is reasonably satisfactory to TSI and hold TSI harmless against any Claims (including reasonable attorney’s fees and costs) to the extent arising from or relating to or caused by the wrongful action of Client or its officers, directors, employees and agents, and Client’s breach of its representations, warranties, and obligations under this Agreement. TSI may, at its option and its expense, participate through its own counsel in the defense of such action or proceeding.
  8. Disclaimer of Warranty. Except as expressly provided in Section 4, TSI has not, does not, and will not represent, warrant, or guarantee the collections or timing of any collections of any Accounts placed by Client, the payment of receivables due, or the results of any services performed hereunder.
  9. Termination or Modification. TSI reserves the right, in its sole discretion, to cancel any Account or terminate this Agreement for convenience.  TSI may cancel any Account placed for Stage One Services or Stage Two Services if Client breaches the terms, conditions, representations and warranties of this Agreement (“Cause”).  Client shall not be entitled to a refund if this Agreement or an Account is cancelled for Cause.  TSI may modify this Agreement in writing, with Client’s acknowledgment and consent, at any time prior to the later of the Placement Date or TSI performing the Stage One Services or Stage Two Services. Except for a Client residing in Wisconsin, if Client terminates this Agreement prior to TSI completing its efforts to collect Accounts placed with Stage Two Services, Client shall be subject to Section 2(G).
  10. Negotiable Instruments. Client authorizes TSI to endorse negotiable instruments made payable in Client’s name received in payment of an Account, deposit in a TSI account, and deduct commissions and amounts owed to TSI.
  11. Canada. With respect to Accounts concerning Canadian residents, Accounts placed with TSI shall be permitted and authorized by Client to be performed by NCO Financial Services, Inc., (“NCOFS”), Transworld Systems – Canada, ULC, an affiliate of TSI, or any other affiliated entity of TSI authorized to conduct business in Canada. The rights and obligations of TSI under this Agreement shall be assigned to the Canadian entity designated by TSI to collect Accounts from Canadian residents.
  12. Affiliated Companies. TSI may perform any portion or all of the Services under this Agreement directly or through its parent, subsidiary and affiliated companies as TSI may elect in its sole discretion. To the extent TSI may direct its parent, subsidiary or affiliate to perform the Services under this Agreement, the Services may or may not be performed within the United States.
  13. Taxes. If TSI is required by law to collect federal, state, or local sales, excise, or other similar tax or levies from Client with respect to an amount paid by Client concerning Stage One Services or Stage Two Services, then:
    1. Parties agree sales related taxes levied in connection with Stage One Services and Stage Two Services are Client’s obligation;
    2. Client shall be responsible for and pay such sales related taxes to TSI;
    3. TSI shall invoice Client and remit such invoiced amount of tax to the appropriate tax authorities as required by law; provided however, TSI shall not bill to or otherwise attempt to collect from Client tax with respect to which Client provided TSI an exemption certificate, direct pay number, or other reasonable basis that relieves TSI of its responsibility to collect such tax from Client; and
    4. Client agrees to pay such taxes and Client shall reimburse TSI for interest, penalties, late fees, and expenses TSI may incur as a result of contests initiated by Client or a failure by Client to remit timely the taxes and levies.
  14. Notices. Any notice by a party to this Agreement made and delivered to the other party hereunder, shall be delivered by (i) overnight courier, or (ii) electronic transmission (including electronic mail (“email”)), with a confirming copy sent by First-Class U.S. Mail postage prepaid, with notice to TSI being provided at:  Transworld Systems Inc., 500 Virginia Drive, Suite 514, Fort Washington, Pennsylvania 19034, Attention: VP, Corporate Legal, Email: legalcontracts@tsico.com. Notice to Client will be provided at the address provided above and at any email address provided when registering in TSI’s OCP. Notice shall be deemed delivered on the same business day of electronic transmission.  All other forms of notice shall be effective upon receipt.  A party may designate in writing other addresses and persons to whom notice should be sent.
  15. Force Majeure. In the event that TSI shall be prevented from performing any of its obligations under this Agreement by an act of God, by acts of war, riot, or civil commotion, by an act of State, by strikes, fire, flood or by occurrence of an event beyond the control of TSI including loss of TSI’s computer system (in whole or part) or loss of its premises (in whole or part) for reason, governmental act or failure of the carrier or the internet, TSI shall be excused from further performance hereunder until the event no longer prevents TSI from performing.
  16. Choice of Law; Assignment. This Agreement shall be construed in accordance with the laws of the State of Illinois. This Agreement may not be assigned by either party without the prior written consent of the other, such consent not to be unreasonably withheld or delayed; except that either party may transfer its rights and obligations, in whole or in part, to an affiliate or subsidiary.
  17. Prevailing Party; Limited Liability. The prevailing party in any action arising from or relating to the Terms of Use or this Agreement, or any breach of this Agreement, shall be entitled to recover its costs and reasonable attorney’s fees from the non-prevailing party. NEITHER TSI NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR TSI CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR TSI CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TSI HAS BEEN INFORMED THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL TSI’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE PRECEDING TWELVE MONTHS OF THE AMOUNTS CLIENT PAID FOR TSI’S SERVICES. THE LIMITATIONS OF DAMAGE SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TSI AND CLIENT.
  18. Disclaimers. TSI’S SERVICES AND TSI CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, TSI EXPLICITLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. TSI MAKES NO WARRANTY THAT THE SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
  19. Dispute Resolution.  In the event of a dispute or disagreement between or among the Parties hereto either with respect to the interpretation of any provision of this Agreement or with respect to the performance hereunder by TSI or Client, within 14 days after notice of such dispute or disagreement, each of the Parties will appoint a designated officer to meet for the purpose of resolving such dispute or negotiating an adjustment to such provision.  No formal proceedings for arbitration of the initially designated dispute may be commenced until one or more of the designated officers conclude in good faith that amicable resolution through continued negotiations of the matter in issue does not appear likely.  In no event, unless other terms are agreed to in writing by the Parties during the pendency of an ongoing negotiation to resolve a dispute, shall such negotiations continue for more than 60 days after the appointment of the designated officers.
  20. Agreement to Arbitrate. To the extent any controversy or Claim arising out of or relating to performance, breach, interpretation, or construction of this Agreement cannot be resolved by direct negotiations, the Parties hereby agree that any dispute, claim or controversy arising out of or relating to the Terms of Use or the breach, termination, enforcement, interpretation, or validity of this Agreement, Terms of Use, or use of TSI’s Services, TSI Content, or User Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right:
    1. to bring an individual action in small claims court and
    2. to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”).

    The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of Illinois and each of the parties hereto waives any objection to jurisdiction and venue in such courts. CLIENT ACKNOWLEDGES AND AGREES TO THE PARTIES WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. Further, unless both Client and TSI otherwise agree in writing, the arbitrator may not consolidate more than one client’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific section is held unenforceable, then the entirety of the “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive termination of these Terms. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution” section.

  21. Arbitration Process.  The Parties agree that such disputed matter shall be submitted to binding arbitration in accordance with the Rules of the American Arbitration Association, at a location in Cook County, Chicago, Illinois, and judgment upon the award rendered by the arbitrator may be entered in a court in Illinois.  A party may submit a matter to arbitration by:
    1. giving written notice to the other party of the intent to submit such controversy or Claim to arbitration of the matter; and
    2. if the Parties have not reached a mutually agreed solution within ten days after such notice, a party may demand by written notice that the controversy or Claim in question be arbitrated in compliance with the AAA Rules.

    The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. In no event may a party demand arbitration after the date on which a Claim would be barred by the applicable statute of limitation.  Each party shall pay half of the expenses charged by the arbitrator.  The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential finding and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The Parties responsibility to pay any AAA filing, administrative, and arbitrator fees will be solely as set forth in the AAA Rules.

  22. Complete Agreement; Electronic Signatures. The totality of this Agreement constitutes the entire agreement between TSI and Client. The Parties acknowledge and agree that this Agreement shall be deemed to have been drafted jointly by the Parties hereto. Ambiguities shall not be construed against the interest of any party by reason of it having drafted all or any part of this Agreement. No statement, representation, claim, or warranty not set forth herein shall be binding upon either TSI or Client. If any provision of this Agreement is held illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable and the legality, validity, and enforceability of the remaining provisions are not affected thereby. This writing may be modified only by a subsequent writing signed by an authorized representative of TSI and Client. Email copies of this document as well as signatures hereon may be treated as originals. Headings are inserted for convenience only and are not intended to be part of or affect the meaning or interpretation of this Agreement.
  23.  Survival. In addition to the Terms of Use that survive termination, Sections 3(G), 4(B) through 4(G), 4(I), 4(K), 4(M) through 4(V) and this Section 4(W) of the Service Agreement, which include terms related but are not limited to, non-disclosure of Confidential Information, representations and warranties, ownership of intellectual property, indemnification obligations, limitation of liability, cancellation and termination fees due to TSI, dispute resolution, and arbitration survive termination and expiration of this Agreement.
  24. General Terms. These Terms constitute the entire and exclusive understanding and agreement between TSI and you regarding the Site, Services, and the Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between TSI and you regarding TSI’s Services and TSI Content. You may not assign or transfer these Terms, by operation of law or otherwise, without TSI’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns. The failure of TSI to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that or any other right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of TSI. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
  25. Wisconsin Client. Wisconsin Clients agree pursuant to Wisconsin Administrative Code Section DFI-Bkg 74.04(1) as follows:
    1. TSI acknowledges it shall not charge Client a fee for returning an Account back to Client.
    2. Client acknowledges TSI is authorized to add interest, collection charges or fees to the Accounts listed for collection. Client acknowledges the interest rate, collection charge and/or fee amount is as follows: N/A.
    3. Client acknowledges the following fees may be charged by TSI: N/A. Any higher commission rate agreed upon for the collection of interest, charges or fees set forth in subsection ii above will not be retained by TSI until the principal amount listed as owing has been collected in full.
  26. Complete Agreement; Counterparts; Electronic Signatures. The totality of this document constitutes the entire agreement between TSI and Client. The Parties acknowledge and agree that this Agreement shall be deemed to have been drafted jointly by the Parties hereto. Ambiguities shall not be construed against the interest of any party by reason of it having drafted all or any part of this Agreement. No statement, representation, claim, or warranty not set forth herein shall be binding upon either TSI or Client. If any provision of this Agreement is held illegal, invalid, or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, and enforceable and the legality, validity, and enforceability of the remaining provisions are not affected thereby. This writing may be modified only by a subsequent writing signed by an authorized representative of TSI and Client. Headings are inserted for convenience only and are not intended to be part of or affect the meaning or interpretation of this Agreement. Email copies of this document as well as signatures hereon may be treated as originals. This Agreement may be executed in one or more counterparts, and counterparts may be exchanged by electronic transmission (including email), each of which will be deemed an original, but all of which together constitute one and the same instrument. This Agreement may also be executed by an electronic signature which includes an electronic symbol, or process attached to or logically associated with an electronic document provided, executed, or adopted by a person with the intent to sign the electronic document. For clarity, an electronic signature on this document shall have the same legal effect as an ink or hand-written signature.

 

The Parties, by their duly authorized representatives, have executed this Agreement on the Effective Date. THIS AGREEMENT MAY BE CANCELLED FOR ANY REASON WITHIN THIRTY (30) DAYS OF THE EFFECTIVE DATE.