Terms and Conditions

These terms and conditions (“Agreement”,or“the Agreement“) is made effective (“Effective Date”) as of the earlier date you send Account(s) to CEDAR HOLDINGS INTERNATIONAL, INC. using this Online Placement Form, you send Account(s) to CEDAR HOLDINGS INTERNATIONAL, INC. by other methods,or when any of CEDAR HOLDINGS INTERNATIONAL, INC.’s partners or affiliates,(collectively referred to as “Agency”) performs any work or services for you (the “Client”). Agency and Client maybe collectively referred to here in as the “Parties“or if singular, a “Party.”

NOW THEREFORE, in consideration of the agreements and the mutual covenants, hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:

  1. Definitions. As used in this Agreement, the following terms will have the following meanings (whether in the singular or in the plural):

1.1 “Account” means an account receivable owned by the Client, which Account Owner, in its sole and absolute discretion, desires to refer to Agency for collection.

1.2 “Account holder” means the debtor, including any individual, if different from or in addition to debtor, who is legally responsible to Account Owner for repayment of the Balance on an Account.

1.3 “Account Information” means the documentation and information evidencing the name, address and contact information of the Account holder, the account number and the correct and full legal name of the creditor to whom the debt is owed and the Balance currently owed to Account Owner by an Account holder.

1.4. “Balance” means the principal amount of the debt owed by an Account holder to Account Owner, minus the sum of any credits.

1.5. “Direct Payments” means a payment received by Account Owner directly on any Account referred to Agency for collection.

1.6 “Fee” means the amount charged by Agency for the provision of collection services, as specified in Exhibit “A” and Section 7 of this Agreement.

1.7 “Remittance Statement” means a written accounting of all funds collected by Agency on Accounts referred by Client which sets forth the Account holder’s name, account number, balance dollars collected, commissions and/or suit fees withheld, and amount remitted to Client.

1.8 “Services” means the debt collecting services the Agreement calls for the Agency to provide, including all management, labor, accounting and related general services.

 

  1. Structure of Agreement.

2.1 Components of the Agreement. The Agreement consists of:

(i)  the provisions set forth in this Agreement and the Exhibits and Schedules referenced herein;

(ii) the Online Placement Form (“Placement Form”); and

(iii) any a Statements of Work executed by the Parties pursuant to this Agreement, including the Schedules referenced in each such Statement of Work.

2.2 Statements of Work.  The Services will be described in either the Placement Form or Statement(s) or Work.

2.3 Deviations from this Agreement, Priority.  In the event of a conflict, the terms of the Statements of Work shall be governed by the terms of this Agreement, unless an individual Statement of Work expressly and specifically notes the deviations from the terms of this Agreement for the purposes of such Statement of Work on the “Deviations From Terms of Agreement” Schedule to such Statement of Work.  In the event of a conflict, the terms of each Statement of Work shall govern the terms of the Schedules referenced therein.  In the event of a conflict, the terms of this Agreement shall govern the terms of the Exhibits referenced herein.  In the event of a conflict, a Change Order shall govern this Agreement, any Statement of Work(s), Schedule(s) and/or Exhibit(s) to which such Change Order applies with respect to the scope and duration of such Change Order.

2.4 Requests for New Services.  During the Term, Client may request that Agency provide New Services.  New Services may be activities that are performed on a continuous basis for the remainder of the Term or activities that are performed on a project basis.  If after review of the Statements of Work either the service could qualify as an additional service, then that service will be deemed a New Service.  To request a New Service, Client will deliver a written request with reasonable detail regarding such service (the “New Service Request”) to the Agency.Within forty-five (45) days after Agency’s receipt of Client’s New Service Request, Agency will prepare and deliver to the Client a written statement (the “New Service Response”) describing any changes in products, services, assignment of personnel and other resources that Agency believes would be required.  No New Service implementation shall occur without the mutual agreement of the Parties to the terms and conditions of such New Service pursuant to the Change Control Procedures.  Any agreement of the Parties with respect to New Services will be in writing, will constitute an amendment to the Agreement and shall also become a “Service” and be reflected in a new Statement of Work hereto or in an amendment to an existing Statement of Work hereunder.

2.5 Interpretation of the Agreement shall be governed by the following rules of construction:  (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context requires, (b) the word “including” and words of similar import shall mean “including, without limitation,” (c) provisions shall apply, when appropriate, to successive events and transactions, (d) the headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement, and (e) the Agreement was drafted with the joint participation of both Parties and shall be construed neither against nor in favor of either, but rather in accordance with the fair meaning hereof.  In the event of any apparent conflicts or inconsistencies between the provisions of this Agreement, the Exhibits, the Statements of Work, the Schedules or other attachments to the Agreement and Statements of Work, such provisions shall be interpreted so as to make them consistent to the extent possible, and if such is not possible, the provisions of Section 2.3 shall control.

 

3.Duties and Obligations of Agency.

3.1 through 3.5.Intentionally deleted and reserved.

3.6 Client shall have the right to recall any Account, at any time from Agency, provided that said recall is made in good faith. Examples of good faith include but are not limited to Account was paid prior to assignment, Account is not legally due and owing, Account is discharged in Bankruptcy, Account holder has threatened or initiated litigation, etc. In the event that an Account is recalled, Agency shall also delete any adverse credit information that it has reported to any Credit Bureau. Accounts recalled by the Client shall be closed by Agency at no charge to Client. Notwithstanding the foregoing, it is acknowledged and accepted by the Parties that Agency has invested resources, time and expertise to cultivate payment plans and accounts marked as promise to pay. As such, the Parties agree that Agency shall retain accounts that are in active payment plan status and/or promise to pay status until a final disposition has been entered by Agency and the account is closed (“PAY File Retention”). Agency will be due its commission and fees, as further detailed hereunder on all PAY File Retention Accounts or for Accounts closed and recalled when said recall was not made in good faith or for no reason at all.

3.7 To the extent permissible under applicable law(s), Agency may submit adverse credit information to one or more Credit Bureaus, unless advised by Client in writing that it does not wish for Agency to report said Accounts. Client shall cooperate with Agency to avoid duplicative credit reporting.

3.8 Agency shall accept payments from Account holders in multiple formats, including cash, check, wire and consumer-generated ACH. Agency shall deposit payments received by Account holders to its designated client trust account on a daily basis.

3.9 Agency shall close any Account positively identified as resulting from identity theft.

3.10 Whenever authorized by law or contract, Agency will collect interest at the contract, statutory, prejudgment or post-judgment legal rate that relates to a referred Account. Agency, as assignee, will accrue interest on the principal balance as allowed by law and may waive or reduce the amount of interest accrued after referral as part of negotiating or reaching a payment arrangement with the Account holder. The interest accrued and collected by Agency will be after the Client’s Balance due on the referred Account has been paid, and the interest will be retained by Agency. The method by which interest and principal are allocated by and between Agency and Client for the disbursementofmoniescollectedshallnotalterormodifytheapplicationofpaymentsasprovided byapplicablelawforpaymentbyadebtortoacreditorforthereferredaccount.

3.11 If Agency receives a lawfully issued subpoena or court order regarding Account holder(s), Agency will use or further disclose records only as permitted by this Agreement or required by Law.

3.12 Agency shall have no obligation to file a proof of claim on behalf of Client on any bankruptcy Account or where a debtor is deceased. Agency may simply close the Account and update the status on the Account to reflect bankruptcy or deceased, as the case may be. It is Client’s sole responsibility to act by filing a proof of claim (or the like) in order to preserve Client’s rights, if any, upon bankruptcy of any Account or where a debtor is deceased. For claims placed with Agency that proceed to litigation or any form of legal collections, Client shall be responsible for all costs and expenses thereto. Agency’s services do not include the defense of any form or counterclaim, counter suit, cross claim or the like against Client. Under such circumstances, Client (not Agency) is solely responsible for all costs, expense and attorney’s fees associated with Client’s defense in such action or claim.

3.13 Agency is not responsible for retaining any Account (or related documents and information) after it is closed by Agency. It is Client’s sole responsibility to maintain records of information and documents from Agency during the term of services hereunder. Agency is not a storage, backup or cloud service provider. Agency does not maintain records beyond its internal retention policy which is changed from time to time at Agency’s sole discretion. Client may request copies of documents and information sent to Agency by Client to the extent they are available to Agency. Agency is not obligated and shall not deliver any work product to Client following termination of services hereunder. During the term of services, Agency is only required to deliver certain status reports generated by Agency’s software for Client’s use. Notwithstanding the foregoing, Client and Agency may agree to certain other reports under each applicable Statement of Work. If available, Agency shall comply with Client’s reasonable request(s) for documents and/or information sent to Agency by Client. All such requests shall be processed on a low (or no) priority basis and Client agrees to pay Agency $85.00 per hour, due upon receipt of invoice, for processing and delivering such requests by Client.

3.14 AGENCY MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING ANY MATTER, INCLUDING THE MERCHANTABILITY, SUITABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR RESULTS TO BE DERIVED FROM THE USE OF ANY SERVICE, SOFTWARE, HARDWARE, DELIVERABLES, WORK PRODUCT OR OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT.

3.15 Agency shall not be liable for consequential damages of any kind, whether as a result of a loss by the Client,a loss related (directly or indirectly) to the acts or omissions of any third party in the performance of Services or otherwise, of present or prospective profits, anticipated sales, expenditures, investments, commitments made in connection with this Agreement, or on account of any other reason or cause whatsoever. If for any reason this Section 3.15 is found unlawful or unenforceable by a court of competent jurisdiction, Agency’s maximum liability shall not exceed that of compensation actually paid by Client to Agency during the 3 months preceding the date of loss by Client.

 

  1. Responsibilities of Client.

4.1 Client may, but is not obligated to, periodically assign on a non-exclusive basis, Accounts to Agency for collection. Agency agrees to provide the Services described in this Agreement with respect to such Accounts according to the terms of this Agreement. Notwithstanding the foregoing, Client represents that all Accounts placed with Agency have not been placed with any other collection agency previously, unless Client specifically advises Agency in writing of the prior placement.

4.2 Client agrees that referral of accounts to Agency will be done in compliance with all applicable Federal, State and Local laws, rules and regulations and that all debts referred to Agency are contractually valid, due and owing, and not barred by the applicable statute of limitations. Specifically, Client represents and warrants to the extent commercially feasible that any and all information concerning Accounts provided to Agency shall be accurate, complete and error free and shall include information regarding all instances in which Accounts have been disputed, in which the debtor has made a cease and desist collection directive, in which the debtor is attorney-represented, in which debtor is deceased, and in which the debtor is bankrupt. Client shall not refer any Accounts that do not represent a valid, legal receivable. Agency’s records shall match Client’s records at all times. Client shall promptly notify Agency of any inaccuracies or errors in any information provided to the Agency.

4.3 Client agrees to work with Agency, to place accounts in a format and transmittal medium that is acceptable to both Agency and Client. Client acknowledges that it has responsibilities under the FDCPA, the FCRA, amongst other statutes and regulations. Client’s cooperation is essential for Agency to comply with all laws and regulations, in addition to complying with its obligations under this Agreement. Client agrees that it will timely comply with all reasonable requests from Agency including but not limited to the execution of documents, requests for documentation, verification, and approval of any settlement. Client also understands that there are laws applicable to its business that require Client’s compliance. Without limitation, laws applicable to Client’s business may include the Truth in Lending Act (TILA) of 1968, and as amended (“TILA”); Equal Credit Opportunity Act (“ECOA”); FDCPA and state-law equivalents (e.g., Rosenthal Fair Debt Collection Practices Act); Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (including Unfair, Deceptive, or Abusive Acts or Practices) and as amended, Electronic Fund Transfer Act (“EFTA”); Telephone Consumer Protection Act (“TCPA”); Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and as amended; and, any other laws relating to Client’s business. Client warrants and represents that it follows all state and federal laws governing its business.

In addition to Client’s compliance obligations noted above, Client specifically agrees to comply with the European Union’s General Data Protection Regulation (“GDPR”) where applicable. In order to promote compliance with the provisions of the GDPR, Client agrees to the terms and conditions stated under Agency’sGDPR Security Compliance Agreement Between Cedar Financial and its Clients July 2018 (“GDPR Security Policy”), and as amended from time to time, which is incorporated by reference hereunder. Client agrees to perform and be bound by all terms and conditions in the GDPR Security Policy (and any amendments thereto) as if such provisions applied to it, and such terms and conditions are incorporated by reference mutatis mutandis, as if set forth at length herein. Agency will notify Client of amendments to its GDPR Security Policy by email or other electronic communication. If Client is unable to comply with any amendment by Agency to the GDPR Security Policy, Client must notify Agency in writing within 3 days. Failure to notify Agency of Client’s inability to comply with the GDPR Security Policy within 3 days constitutes Client’s assent to its terms.

4.3 Client agrees to provide Agency with weekly notification of all Direct Payments received by the Client on Accounts referred to Agency. Client shall credit the account

4.4 Upon referral of Accounts to Agency, Client will provide Agency with Account Information and an itemization of the specific delinquent amounts due on each referred Account.

4.5 In the event that Client approves a request for legal action on any account, Client agrees to cooperate with regard to said action, including but not limited to supplying documentation, witnesses, and the timely execution of legal documents as required.

4.6 An Account placed with Agency by Client may not be placed or sent to another collection agency, unless Client has requested its closure and Agency has confirmed the same in writing. Any breach of this Section 4.6 is a material breach of this Agreement.

4.7 Account Verification. Client agrees to identify the amounts to be collected and will verify the accuracy of all Accounts (including amounts and dates of default) placed for collection with Agency. In addition to any other representations and warranties contained, Client further warrants (I) the accounts are legally supported by contracts, Client invoices, and file documentation   Client generates and maintains in the ordinary course of business; and (2) that the debt referred is not currently being collected by another entity. Client understands and agrees that any Account amount placed with Agency (including principal, interest, late fees, services fees, fines, other fees, collection fees/costs, and/or attorney’s fees) complies with all applicable federal and state laws and regulations.

4.8 Consumer Verification. Agency may terminate Services on any Account and return the same to Client at the sole discretion of Agency. Client understands and agrees that it will not place with Agency those Accounts returned by other collection agencies if the agency returned the Account because the consumer has sued or regularly sues the debt collection industry.

4.9 Section intentionally deleted

4.10 Tracing Technology. Client further warrants Client does not utilize skip tracing technology to identify telephone numbers for those Accounts placed for collection with Agency. Therefore, if Client obtains cellular numbers at the time of the service or transaction, Client warrants those applicable telephone numbers were provided by the consumer whose Account was placed for collection. Client will remove any cellular telephone numbers prior to placement with Agency if the consumer, or anyone on the consumer’s behalf, has revoked consent to make calls to an applicable cellular telephone number.

4.11 Consumer Telephone Data. Client warrants that any telephone number provided to Agency was originally provided to Client by the consumer when the consumer was registering to receive services from Client. Additionally, Client warrants any telephone number provided was not located via skip tracing by either Client or a prior collection entity. Client waives any claim against Agency wherein a consumer alleges a violation of the Telephone Consumer Protection Act.

4.12 Account Fees. Each Account placed for collection may or may not include principal, interest, late fees, other fees, fines, and/or collection fees. Client hereby warrants that any amount above the principal amount of the Account holder’s obligation is expressly authorized by applicable law and/or a written agreement between the Account holder and the Client and/or is specifically allowed by applicable law. Client hereby understands and agrees that Client determines Account amount, including the assessment of any amount above the principal. Any communication with an Account holder by the Client shall correctly and accurately inform the Account holder of how Client’s Accounts are calculated and inform Account holder(s) that all amounts related to an Account are assessed by the Client.

4.13 Account Recall. Client agrees to notify Agency if it wishes to recall any placed Accounts. Upon such notice, Agency will close and return the recalled Accounts, subject to the payment of any fees or commissions due hereunder. Accounts with a current payment plan or promise-to pay (within a reasonable time frame) will remain open until monies are received. Client will pay the contingency fees due to Agency under this Agreement upon closure of Account(s).

4.14 Representations to Consumer. Any communication from Client to a consumer shall accurately inform the consumer about how an Account amount is calculated and inform the consumer that all amounts being collected are determined and assessed by Client in accordance with applicable laws.

4.15 Consumer Notification. Client agrees to notify Agency at the time an Account is placed if the consumer responsible for the Account has filed bankruptcy, sued the Client, or sued a prior Agency.

4.16Client has a duty of good faith and fair dealing with Agency and further understands that Agency is advancing numerous resources, costs and applying trade secrets that have been developed over several decades of experience for each account placed with Agency. Agency has an expectation of economic return under this Agreement for the aforesaid efforts. Client agrees not to engage in any act that will or may potentially interfere with Agency’s prospective economic advantage, which will likely take time to transpire. For the purpose of illustration rather than limitation, acts that interfere with Agency’s prospective economic advantage are closure of some, all or substantially all accounts following efforts by agency without just cause (e.g., bankruptcy of the Accountholder); or, closing accounts for the purpose of avoiding Agency’s fees under this Agreement.

If not an individual, Client (i) is a corporation, limited liability company or other legal entity, duly organized, authorized and validly existing and in good standing under the laws of the state of organization or incorporation (and any other states, countries and provinces so required by applicable law), and (ii) has full corporate power to operate and conduct its business as currently conducted and to enter into the Agreement.

This Agreement has been, each Statement of Work and Placement Form, whether submitted online by “click through” (or “click and accept”) methods or by other methods, will be, duly authorized, executed and delivered by Client and constitutes or will constitute, as applicable, a valid and binding agreement of Client, enforceable against Client in accordance with its terms.

Neither the execution and delivery of this Agreement or any Statement of Work by Client, nor the consummation of the transactions contemplated hereby or thereby, shall result in the breach of any term or provision of, or constitute a default under, any charter provision or bylaw, agreement (subject to any applicable consent), order, or Law to which Client is a Party or which is otherwise applicable to Client.

 

  1. Credit Reporting,

5.1 Unless, otherwise instructed by Client in writing, Agency may provide information on Accounts to one or more credit repositories.

5.2 Client shall promptly notify Agency of any and all instances in which Accounts have been disputed, either in which the Account holder has made a cease and desist collection directive, or in which the Account holder is attorney represented, or in which the Account holder is bankrupt, or on which the Account holder has made full or partial payment.

5.3 Client agrees to provide Agency with the original date of delinquency on each Account placed.

5.4 Client agrees to indemnify and hold Agency harmless for any information provided to Agency which results in Agency providing inaccurate or false account.

 

  1. Remittance of Collections.

6.1 Client expressly grants and authorizes Agency the right to endorse on behalf of Client and deposit in Agency’s trust account any check, draft or other negotiable instrument received by Agency in payment of a referred account, such right to be used only in connection with Agency’s activities here under.

6.2 Agency shall remit to the Client the net amount, less its fee, monies collected by Agency on all accounts. Agency will include a detailed report by Account of payment activity.

 

  1. Compensation.

7.1 In consideration for the Services performed by Agency here under, Agency shall receive the Fees as outlined in the Placement Form. Agency shall be entitled to compensation regardless of the source of the payment and/or regardless of whether the payment is made to Agency or to Client. Similarly, Agency shall be entitled to payment if Client waives a portion of the balance, accepts compensation other than monetary compensation and/or provides value of any kind to the Account holder. Client shall be responsible for costs incurred by Agency due to debit or credit card usage and other merchant services.

7.2 Compensation shall be netted from monies received by Agency prior to disbursement by Agency to Client. Should Agency not be in receipt of sufficient monies to deduct its fee, it will submit an invoice to Client for payment. Any invoice submitted to Client is due upon receipt. Any invoice that is not paid within 30 days after receipt shall incur interest at a rate of 1.75% every month it is past due; and, Client, in addition to the amount due for collections, shall pay such interest in addition thereto.

7.3 With respect to any amount that (i) should be paid to Agency under the Agreement; or (ii) is otherwise payable to Agency pursuant to the Agreement, Agency may deduct the entire amount owed to Agency against amounts owed to Client under the Agreement.

7.4 In addition to the Compensation set forth above, Agency shall also be entitled to compensation for return of merchandise, tangible things and the like (“Goods”). If Client receives the return of Goods on any Account placed with Agency for Services, Agency shall charge, and Client shall pay, one half (1/2) of the Fees payable to Agency by Client.

7.5 Unless otherwise waived by Agency, an advance non-refundable fee in the amount of $750 is required to initiate our services for any client with a single claim placement valued under USD$10,000. If not in advance, the fee is applied and deducted from any future earned commission by Agency.

7.6 Cases that proceed to Agency’s legal department for further collection efforts (“Legal Accounts”) will be subject to a rate increase to fifty percent (50%) of any amounts collected. Legal Accounts are Accounts where a demand by an attorney has been made or where any effort by Agency’s legal department has been made to collect on the Account placed by Client.

7.7 Cases where the account is older than one (1) year old from the date of last unpaid invoice (or unpaid charge, as the case may be) shall be charged a commission rate of fifty percent (50%). This step-up in commission rate to fifty percent (50%) shall also occur in the event that on the date of placement the account is under one (1) year old, and later, by the passage of time, the account becomes older than one (1) year old from the date of last unpaid invoice (or unpaid charge, as the case may be). Agency may retain, in its entirety, any and all allowed additional fees, costs, or additional interest and fees received from the debtor above the balance placed by Client. Fees will be due on all accounts collected, whether paid direct to creditor or to agency, or on accounts withdrawn after our demand has been made. A 3 (three) percent credit card fee will be charged to any credit card transaction listed on monthly remittance statement(s). The credit card transaction fee(s) are charged to Client and offset by the remittance balance due to Client. Credit card transaction fees are not added into any debtor account or charged to the debtor.

8.Insurance. At all times during the Term, as defined under Section 13 (“Term and Termination”), Agency will maintain insurance coverage of the types and with amounts of coverage reasonably expected of debt collection agencies situated similarly to Agency.

9.Event of Default. If any one of the following events (“Events of Default”) shall occur and be continuing:

9.1 Any failure by either Party to deliver to the other Party any proceeds or payment required to be so delivered under the terms of this Agreement that shall continue unremedied for a period the of five (5) Business Days after the earlier of (i) knowledge by defaulting Party of such failure; or (ii) receipt of written notice by the defaulting Party of such failure from the aggrieved Party;

9.2 Failure on the part of either Party to observe or to perform in any material respect any other covenants or agreements set forth in this Agreement,which failure shall continue unremedied for a period of thirty (30) days after the date on which written notice of such failure shall have been received by the defaulting Party from the aggrieved Party;

9.3 A breach of any representation or warranty made in this Agreement that is not cured in all material respects within ten (10) consecutive days after the earlier of (i) receipt of written notice of such breach from the aggrieved Party; or (ii) upon discovery by the Party in breach;

9.4 A voluntary or involuntary petition for bankruptcy concerning Agency is filed under Title 11 of the United States Code, the Agency makes a general assignment for the benefit of creditors or commences any other proceeding under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar law of any jurisdiction whether now or hereafter in effect relating to the Agency, or a custodian is appointed for, or takes charge of, all or any substantial part of the property of the Agency;

9.5 Client is found guilty of a crime or in violation of a state or federal law related to its business and such crime or violation is directly or indirectly related to Accounts referred to Agency by Client.

 

  1. Indemnification: Each party (the “Liable Party”) agrees to indemnify, defend and hold harmless and pay all judgments and claims against the other party (“Non-Liable Party”) for all liabilities arising out of claims against the Non-Liable Party relating to any liability or damage to a third person incurred by reason of any act, omission or any breach of any provision of this Agreement by the Liable Party, Events of Default by Liable Party or the negligence or willful misconduct of the Liable Party including reasonable attorneys’ fees incurred by the Non-Liable Party. Such actions shall include but not be limited to violations of any laws and/or regulations which govern the collections of delinquent accounts, credit reporting and accuracy of information. With respect to any circumstance under which either party might be responsible for indemnity under this Agreement, the Non-Liable Party shall consult with the Liable Party to give the Liable Party the opportunity to resolve any claim with third parties which might result in such indemnification. The Non-Liable Party shall not settle any claim without the Liable Party’s prior written consent, which shall not be unreasonably withheld. Provided further, however, that as to any actions by third parties constituting the subject of the indemnification under this Section, the Liable Party, at its option, shall assume and control the defense and settlement of each such action, including employment of counsel and payment of all expenses. The Non-Liable Party shall give the Liable Party written notice of any request for indemnification promptly after learning any fact or circumstance which might reasonably result in such a request and provide the Liable Party with a reasonable opportunity to defend against the underlying claim or settle or otherwise dispose of the claim and cooperate with Liable Party in the defense or other disposition of such claim.

 

  1. Confidentiality; Intellectual Property Rights.

11.1“Confidential Information” shall mean any non-public information of a Party including, but not limited to business plans, products, technical data, specifications, documentation, rules and procedures, contracts, presentations, know-how, product plans, business methods, product functionality, services, data, customers, markets, payment, delivery and inspection procedures, designs, drawings, algorithms, formulas, or information related to engineering, marketing, or finance. Information exchanged during the Term of this Agreement shall obtain the benefit of this Confidentiality Clause. The period during which such information must be kept in confidence shall be five (5) years from the date of disclosure. Each Party will keep the other Party’s Confidential Information confidential. Specifically, each party receiving Confidential Information agrees not to disclose such Confidential Information except to those directors, officers, employees and agents of such Party (i) who reasonably need to know such information and (ii) who have been informed of their obligation to maintain the confidential, proprietary and/or trade secret status of such Confidential Information. Each Party acknowledges that it has all requisite authority under applicable laws to provide the other Party with access to Confidential Information. Each Party receiving Confidential Information further agrees that it will not use such Confidential Information except for the purposes set forth in this Agreement .Each Party receiving Confidential Information shall treat such information as strictly confidential, and shall use the same care to prevent disclosure of such information as such Party uses with respect to its own confidential and proprietary information, provided that in any case it shall not use less than the care a reasonable person would use under similar circumstances.

The receiving Party shall promptly notify the disclosing Party in the event the receiving Party learns of any unauthorized possession,use or disclosure of the Confidential Information and will provide such cooperation as the disclosing Party may reasonably request,at the disclosing Party’s expense, in any litigation against any third parties to protect the disclosing Party’s rights with respect to the Confidential Information.

Except as otherwise provided by law, neither Party shall disclose the terms of the Agreement to any third party; provided, however, that either Party may disclose the terms of this Agreement to its professional advisers, or to any potential investor or acquirer of a substantial part of such Party’s business (whether by merger, sale or assets, sale of stock or otherwise), provided that such third party is bound by a written agreement or legal duty on such terms at least as strict as those set out in this Section to keep such terms confidential.

Notwithstanding the foregoing, the preceding provisions of this section will not apply to information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is rightfully already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing Party without restriction. Each Party may disclose Confidential Information to the limited extent necessary: (a) to comply with the order of a court of competent jurisdiction or other governmental body having authority over such Party, provided that the Party making the disclosure pursuant to the order will first have given notice to the other Party and made a reasonable effort to obtain a protective order; (b) to comply with applicable law or regulation requiring such disclosure; or (c) to make such court filings as may be required to establish a Party’s rights under this Agreement.

11.2 All Agency owned or licensed software, that is necessary for the Agency to perform the Services shall be “Agency Software”.

11.3 As between the Parties, Agency will retain all of its right, title and interest in and to the Agency Software.  Agency hereby grants to Client a non-exclusive, non-transferable, revocable and fully paid-up license during the Term to use Agency Software for the sole purpose of the Services as required under the Agreement.  This license may be terminated at any time by Agency upon written notice to Client.

Client shall comply with the duties, including use and non-disclosure restrictions imposed on Agency and users by the licenses for such Agency Software.  In addition, Client will use the Agency Software in compliance with any applicable use restrictions.  Unless otherwise stated, Client shall be solely responsible for obtaining, installing, operating and maintaining at its expense any Agency Software, which Agency grants Client access.

Client shall not reproduce, reverse engineer, decompile, deconstruct, copyright, patent or do any act that may have an impact on Agency’s ownership rights in Agency Software and other materials provided to Client which may be owned by Agency or any Third Parties.

11.4 Agency shall own all right, title and interest in and to the work product created hereunder, including all Intellectual Property Rights, any and all technical information, computer or other specifications, documentation, works of authorship or other creative works, ideas, knowledge, know-how or data, written, oral or otherwise expressed, originated by Agency or by one or more of the Agency’s representatives as a result of work performed under or in anticipation of the Agreement, or that any way relate to the Services hereunder (“Work Product”).

11.5 Agency hereby grants to Client a fully paid-up, non-exclusive, revocable license to use, display, copy and make derivative works of the Work Product solely for the purpose of providing the Services to Client under the Agreement. However, derivative works created by Client shall be owned by Agency as if the derivative works were “work made for hire” and as such term is defined by United States Copyright Law.

11.6 In the event (and to the extent) that any derivative works created by Client, or any part or element thereof is found as a matter of law not to be a “work made for hire” within the meaning of the Act, Client hereby irrevocably conveys and assigns (and in the case of work product not yet developed, hereby covenants upon their development to irrevocably convey and assign) to Agency the sole and exclusive right, title and interest in and to all such work product, including all Intellectual Property Rights therein, and all copies of any of them, without further consideration, and agrees to assist Agency to register, and from time to time to enforce, all Intellectual Property Rights and other rights and protections relating to the work product created hereunder in any and all countries.

11.7 Client shall obtain Agency’s prior written consent prior to incorporating any inventions or materials previously made, developed or copyrighted by Agency or others, and not originated or developed hereunder (“Pre-existing Materials”) in any of Client’s work product.

11.8 The trademarks, trade names and logos under which the Agency markets its goods or services, together with Agency’s and its Network copyrights and know-how (collectively, “Agency Marks”) are the sole and exclusive property of the Agency.  Client acknowledges and agrees that it does not have, and by reason of the Agreement will not acquire, any license, property right or right to use such Agency Marks.

11.9 The Parties agree that Agency personnel providing Services on behalf of the Client hereunder shall be permitted to use in the future their knowledge and skills based upon, but not disclose to any Third Party, Residuals.  For these purposes, “Residuals” shall mean such general knowledge, know-how and experience, including processes, methods, techniques and concepts developed, conceived or acquired by Agency personnel in connection with the Services as may be retained in the unaided memory of such personnel.

 

  1. Audit. Agency shall keep complete and accurate records with respect to the Accounts and all actions taken with respect thereto (“Books and Records”), which Books and Records Agency shall provide Client, or a third party on behalf of Client, with limited access to inspect, audit, and/or review upon Client’s reasonable request during normal business hours upon three (3) days written notice to Agency. Client shall not audit Agency more than twice during any calendar year. Agency shall have the same rights to audit Client’s Books and Records for the purposes of determining any unreported Direct Payments, but only with regard to the Accounts assigned to Agency.

 

  1. Term and Termination:

13.1This Agreement shall be in effect for an “Initial Term” of one (1) year. Thereafter the Agreement will automatically renew for one (1) additional one (1) year periods (“Renewal Term”) unless either Party notifies the other Party of its intent to terminate at least sixty (60) days before the end of the term.

13.2 Notwithstanding the foregoing, this Agreement may be terminated by either party, during the initial Term and any renewal Term, for the following reasons: (1) upon the material breach of this Agreement which breach is not cured by the breaching party within ten (10) days after receiving written notice from the other of the such breach; (2) upon any of the Events of Default which is not cured by the defaulting Party within ten (10) days after receiving written notice from the non-defaulting Party of the such default; or (3) the other party’s bankruptcy, insolvency, assignment of assets for the benefit of creditors. 

13.3 Upon such termination the Agency shall immediately cease all activity pursuant to this Agreement and accounts referred to Agency will be immediately closed and returned to Client, unless otherwise agreed upon by Client. Notwithstanding the foregoing, and in the event that the termination is not due to a material breach by Agency of any provision of this agreement, Agency may retain Accounts that have an existing promise to pay, are making payment(s), or are in litigation or Judgment. Agency will continue to use its best effort to collect those Accounts which are excluded from the return, will continue to report and remit collections received on such Accounts, and will be entitled to commissions on such collections in the same manner and amount as are provided in this Agreement.

13.4 No termination of this Agreement relieves Client or Agency from their obligations, which have accrued prior to the effective date of termination, or by their nature are intended to survive the termination of this Agreement.

13.5 Upon termination, Client shall pay Agency any fees regarding amounts which have already been collected by Agency hereunder at the time of such termination.

 

  1. Licenses; Legal; Agency’s Network; Third-Party Agreements.

 

14.1 Agency may forward accounts to Agency’s network of licensed affiliates, subsidiaries, parents, partners, vendors, agencies, service providers, attorneys and other professionals (“Network”) in order to perform theServices hereunder on behalf of the Client at no additional expense to Client.

14.2 All Accounts for which Client has approved litigation, shall be forwarded to an attorney, duly licensed to initiate and pursue litigation in the jurisdiction where the legal action is to be commenced. Client shall advance all costs of litigation including but not limited to any and all filing fees, costs of service, Sheriff’s fees, etc. Agency shall be entitled to an increased fee as detailed on the Placement Form.

14.3 Agency’s Network is confidential and proprietary information and is considered Agency’s trade secret. Agency shall utilize its Network to perform the services hereunder. Agency has, or will, obtain assurances from each person or entity within its Network sufficient to enable Agency to comply with the provisions of this Agreement.  To the extent Client receives payment and pays Agency its compensation in accordance with the terms hereunder, or where Agency receives payment and credits the Account(s) of Client, and Agency has actually subcontracted certain services on such Account(s) to its Network, Agency will be responsible for the payment of fees due to Agency’s Network related to the Client’s Account(s).

14.4 The “Third Party Agreements” are agreements (if any) between Agency and a Third Party or Agency’s Network that are necessary for a provision of the Services for which Agency retains both financial and management responsibility.  Agency shall obtain in each such Third-Party Agreement provisions enabling Agency to meet its obligations set forth hereunder.

 

  1. Miscellaneous.

15.1Relationship of the Parties. The relationship between Client and Agency shall not be construed as a joint venture, partnership or principal-agent relationship, and under no circumstances shall any of the employees of one Party be deemed to be employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other in any agency or any other capacity, except as expressly set forth in this Agreement.

15.2Notices:

(a)Any notice required or permitted hereunder shall be in writing and shall be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the U.S. Postal Service as certified mail, return receipt requested and postage prepaid, (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested, (iv) upon confirmation of receipt by the party to receive such notice, of a fax sent to the fax number of such party, or (v) upon confirmation of receipt by the party to receive such notice, of an e-mail sent to the e-mail address of such party.

(b) Any such notice shall be delivered or sent to a party at its address, or e-mail address as set forth beneath its signature on this Agreement, or to such other address or fax number as may be designated by a party in a notice given to the other from time to time in accordance with the terms of this paragraph.

To Agency:

Cedar Holdings International Inc.

5230 Las Virgenes Rd. Suite 210

Calabasas, CA 91302

818-224-3800

Courtesy copy to: legal@cedarfinancial.com

To Client:

Notices to Client shall be faxed number, mailed or e-mailed to the contact information provided by Client on the Placement Form.

15.3 Assignment. This Agreement will be binding upon and inure to the benefit of each of the Parties, their successors and assigns. Except as required by Agency to perform its obligations hereunder (e.g., forwarded Account(s) to Network), neither Party may assign this Agreement or assign its rights or delegate its duties hereunder, without the prior consent of the other Party (except in connection with a merger, sale of all or substantially all of a Party’s assets or other form of corporate reorganization of that Party) and any purported assignment in violation of this Section will be without force or effect.

15.4 Modification. No change to this Agreement shall be valid unless in writing and signed by authorized representatives of both Parties.

15.5 Governing Law. This Agreement will be governed by the laws of the State of California without regard to its conflicts of law provisions. In the event that Client does not do business within the United States, Client and Agency agree that Arbitration may be had by each Party participating in a collaborative Arbitration in the Country of its residence. If there is not such Arbitration and/or the Client does business located in the United States, Judicial proceedings regarding any matter arising under the terms of this Agreement shall be brought solely in the state or federal courts of the State of California. Each Party hereby knowingly, voluntarily and intentionally waives, to the fullest extent permitted by applicable law, the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.

15.6 Severability. If any provision of this Agreement shall be or becomes wholly or partially invalid, illegal or unenforceable, such provision shall be enforced to the extent that its legal and valid and the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.

15.7 Facsimile, Electronic Signature and Counterparts. This Agreement may be executed and delivered in separate counterparts, each of which, when so executed and delivered, shall be an original, but such counterparts together shall constitute but one and the same instrument and agreement. Facsimile or electronic signatures shall be binding and effective and shall have the same force and effect as original signatures.

15.8 Force Majeure. To the extent that either party’s performance under this agreement is prevented or delayed, either totally or in part, for reasons beyond that party’s control such as an act of God, war, or government authority, a labor strike or labor dispute, a fire, flood, or other natural disaster, then that party will not be liable, so long as it resumes performance as soon as practicable after the reason preventing or delaying performance no longer exists.

15.9 Entire Agreement. This is the entire Agreement between the parties, including any attached Statement of Work, addenda, exhibits and schedules with respect to its subject matter, and any previous or contemporaneous understanding is merged herein.

15.10 Confidentiality. The terms and conditions of this Agreement are absolutely confidential between the parties and shall not be disclosed to anyone else, except as shall be necessary to effectuate its terms. Any disclosure in violation of this section shall be deemed a material breach of this Agreement.

15.11 Attorney’s Fees. If any Party to this Agreement resorts to a contract action or arbitration to enforce or interpret any provision of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees in addition to any other relief to which that Party may be entitled. This provision applies only to actions to enforce payment of fees, costs, commissions, or Compensationfrom Client to Agency (as described under Section 7 “Compensation”) of this Agreement; and each party to this Agreement was represented by an attorney in the negotiation and execution of the Agreement.

15.12 No Construction against Drafter(s). The Parties represent and warrant that they have been represented by counsel and have cooperated in the drafting and preparation of this Agreement. In any construction to be made of this Agreement, the same shall not be construed for or against any particular Party, but rather the Agreement is to be construed to implement the intent of the Parties. No Party is deemed the drafter of this Agreement for purposes of its construction.

15.13 Further Documents. The Parties shall promptly cooperate to execute any further documents necessary to effectuate the intent of the Parties as set forth in this Agreement.

15.14 Authorization. The undersigned, by their signatures, represents and warrants that he or she has the necessary authority to bind the respective entity for which he or she is signing; and that he or she has read this Agreement in its entirety, and had the opportunity to consult with his or her own counsel before signing. Each corporate party to this Agreement, represents and warrants that the person executing this Agreement on its behalf has the authority to execute this Agreement on such corporation’s behalf.

15.15 Headings. The headings in this Agreement are for information and organization only and are not deemed substantive terms of this Agreement.

15.16 No Guarantees. Client is purchasing a service rather than a product.  A service renders benefits; however, those benefits may or may not be tangible.  The purpose for purchasing services is to solve a problem or accomplish a desired result.  Even though a service may be provided, the ultimate desired result may or may not occur.   Client understands that, particularly with respect to debt-collection services, Agency cannot guarantee any expected outcome or conclusion of any matter due to numerous and complicated factors which exist with most Accounts.  Accordingly, while Agency will always endeavor to use best efforts in resolving Accounts, Agency cannot guarantee a favorable outcome in any matter.

15.17 Remedies. Agency may seek all remedies available to it under law and in equity including injunctive relief in the form of specific performance to enforce the Agreement and/or actions for damages. Agency may seek monetary damages resulting from Client’s breach of its obligations under the Agreement, but Agency irrevocably agrees not to initiate any proceedings, file any action or suit in any court of competent jurisdiction or before any judicial or other authority arising under, out of, in connection with or relating to the Agreement against the Client or its officers, directors, employees or agents in which it seeks equitable remedies of any nature, including specific performance or injunction, except in connection with the alleged violation by such persons of the confidentiality provisions of the Agreement or alleged infringement of Agency’s Intellectual Property Rights.

15.18 Consent. If Client provides Agency with a telephone number and/or e-mail address, The Client consents to receive autodialed, prerecorded/artificial voice message calls and text messages at that number, or e-mail messages at that e-mail address, from the Agency or from third parties that work for the Agency, even if the number is for a wireless telephone and/or using that number results in charges to the Client.