Supplier Terms & Conditions
This Supplier Agreement (“Agreement”) made on May 3, 2022, between Skyscend Capital, LLC, a Delaware limited liability company (“Skyscend”), and the “Supplier” identified in the Supplier Registration Form (defined below) (“Supplier”).
A. Skyscend is in the business of servicing payment of certain payables owed to a supplier by a customer of the supplier with whom Skyscend has entered into a payables servicing agreement (an “Eligible Customer”).
B. Supplier is willing to accept payment from Skyscend of payables owed to Supplier by Eligible Customers, subject to the terms and conditions set forth herein, and has completed and submitted to Skyscend on the Site Supplier’s application form (the “Supplier Registration Form”) for Supplier’s enrollment in the payables serving program offered by Skyscend as set forth in the Agreement, which shall be accepted by Skyscend, in its sole discretion, in order for Supplier to have further access to the Site.
NOW THEREFORE, in consideration of the premises, and intending to be legally bound hereby, the Parties agree as follows:
1. DEFINITIONS. The following terms shall have the meanings set forth below.
“Business Day” - Any day other than a Saturday or a Sunday on which banks are open for business in the Chosen State.
“Due Date” - The date on which payment of the Invoice Amount is due, according to the Eligible Customer as set forth in the Invoice Approval Notice; provided, however, if such date is not a Business Day, the Due Date shall be the immediately preceding Business Day.
“Due Date Payment Election” – See Section 2.2.1(a).
“Early Payment Discount” – the discount proposed by Skyscend to the Supplier, and accepted by Supplier, in connection with the applicable Invoice Amount.
“Eligible Customer” – See Recital A.
“Invoice Amount” – The amount of the invoice, payment request or purchase order to the extent that the amount has been approved by the Eligible Customer for payment as set forth in the Invoice Approval Notice, exclusive of the amount of any sales, use or other taxes, shipping charges, customs or import duties or like incidental charges to the extent that payment thereof imposes collection or reporting requirements or duties on the payor.
“Invoice Approval Notice” – A written notification, received by Skyscend from an Eligible Customer, notifying Skyscend that a payable owing by the Eligible Customer to Supplier has been approved for payment to Supplier.
“Notification Date” – The date that Skyscend receives an Invoice Approval Notice.
“Parties” – Skyscend and Supplier.
“Payment Election” – See Section 2.2.1.
“Prompt Payment Election” – See Section 2.1.1(b).
“Supplier Notification” –See Section 2.1.1.
2. SERVICING OF PAYABLES.
2.1 Notification of Invoice Amounts.
2.1.1 Upon receipt of an Invoice Approval Notice, Skyscend may notify Supplier on the Site (each a “Supplier Notification”) of:
(a) the name and address of the Eligible Customer as contained in the Invoice Approval Notice;
(b) any Account or invoice number or other information contained in the Invoice Approval Notice to identify the invoice, payment request or purchase order giving rise to the payable;
(c) the Invoice Amount;
(d) The Notification Date; and
(e) The Due Date.
2.2 Payment Election.
2.2.1 Supplier may elect on the Site one of the following payment options (each a “Payment Election”) for any Invoice Amount owed to Supplier by an Eligible Customer or for all Invoice Amounts owed to Supplier by an Eligible Customer:
Payment of the Invoice Amount on the Due Date (a “Due Date Payment Election”); or
(a) Payment of the Invoice Amount promptly on or following the Notification Date, less the Early Payment Discount (a “Prompt Payment Election”).
2.2.2 The Payment Election for all Invoice Amounts owed to Supplier by all Eligible Customers will be the Prompt Payment Election unless Supplier has designated the Due Date Payment Election as the default Payment Election on the Supplier Registration Form or in a subsequent election on the Site pursuant to Section 2.2.3.
2.2.3 Supplier may, by doing so on the Site, at any time withdraw or otherwise change Supplier’s Payment Election for any or all Invoice Amounts or for an Eligible Customer. The change will apply to all Invoice Amounts owing by the Eligible Customer for which Skyscend receives an Invoice Approval Notice after the date of the change.
2.2.4 Skyscend is authorized to act on Payment Elections given by email, or other written instructions, by anyone purporting to be an officer, employee or representative of Supplier.
2.3 Payment. All payments by Skyscend to Supplier may be made:
2.3.1 In Skyscend’s sole discretion and nothing herein shall be construed as a commitment by Skyscend to make any payments hereunder;
2.3.2 By transfers to any demand deposit account of Supplier designated by Supplier on the Site.
2.4 Assignment and Recourse.
2.4.1 If Skyscend pays an Invoice Amount in accordance with the Payment Election:
(a) Skyscend shall be subrogated to the rights of Supplier in respect of the Invoice Amount with the result that Skyscend shall be the assignee of the Supplier’s right to payment of the Invoice Amount from the Eligible Customer; and
(b) Supplier shall not have any claim against Eligible Customer for the Eligible Customer for the Invoice Amount to the extent of the payment made by Skyscend, inclusive of any Early Payment Discount included under the Payment Election in the computation of the amount of the payment.
2.4.2 Payment by an Eligible Customer of an Invoice Amount to Skyscend before Skyscend has paid the Invoice Amount to Supplier as provided in Section 2.4.1, shall, to the extent of the payment, bar Supplier from recourse against the Eligible Customer for the Eligible Customer’s obligation to pay the Invoice Amount to Supplier.
2.4.3 If an Eligible Customer rescinds an Invoice Approval Notice relating to any Invoice Amount, Skyscend shall notify Supplier by so indicating on the Site whereupon Skyscend shall not pay Supplier the Invoice Amount.
2.4.4 Any bar on Supplier’s recourse to the Eligible Customer in respect of the Invoice Amount under this section shall be an irrevocable and permanent waiver of Supplier’s recourse. The bar shall continue to apply even if Skyscend’s rights as subrogee or assignee in respect of the Invoice Amount are avoided or are otherwise not effective for any reason.
2.4.5 Supplier herely indemnifies the Eligible Customer and Skyscend from any loss arising out of either’s payment of an Account of the Eligible Customer to or for the account of the Supplier, rather than to an assignee thereof. This Section 2.4.5 shall be deemed an amendment to all present and future agreements between Supplier and the Eligible Customer, and the Eligible Customer shall be an intended third-party beneficiary of this Section 2.4.5.
2.5 ACH Authorization. In the event that Skyscend makes any payment to Supplier which Supplier was not entitled to receive under Supplier’s contract with an Eligible Customer or applicable law, Supplier authorizes Skyscend to initiate electronic debit entries in the amount of such payment through the ACH system to any deposit account maintained by Supplier.
3. THE SITE.
3.2 Supplier may access and use the Site to, among other things:
3.2.1 Exercise a Payment Election,
3.2.2 Review, monitor and ascertain:
(a) Whether a customer of Supplier is then an Eligible Customer;
(b) Supplier Notifications;
(c) Whether an Invoice Approval Notice has been rescinded,
(d) Whether payment of an Invoice Amount has been made;
3.2.3 Make other communications under this Agreement to the extent provided on the Site.
4.1 No Responsibility for Goods or Services.
4.1.1 Skyscend is providing a payment intermediation service for the benefit of Eligible Customers and Supplier and is not a seller or other provider of goods or services giving rise to payables owing by Eligible Customers to Supplier. Supplier shall not assert any claim or defense against Skyscend that Supplier has against an Eligible Customer arising out of the sale or other provision of goods or services by Supplier to the Eligible Customer, including any claim resulting from the failure of the Eligible Customer to approve a higher amount for payment to Supplier than that approved in an Invoice Amount.
4.1.2 WITHOUT LIMITATION ON THE FOREGOING, AND FOR THE AVOIDANCE OF ANY DOUBT, SKYSCEND EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE GOODS OR SERVICES SUPPLIED BY SUPPLIER, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON INFRINGEMENT AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
4.1.3 Any dispute that Supplier may have arising out of goods or services provided to an Eligible Customer shall be settled between Supplier and the Eligible Customer. Supplier shall indemnify Skyscend from and hold Skyscend harmless against any loss, cost or expense sustained or incurred by Skyscend on account of a claim by an Eligible Customer or any third party against Skyscend relating to the goods or services provided by Supplier to the Eligible Customer.
4.2 Taxes. Skyscend assumes no responsibility for payment of any sales, use or other taxes, shipping charges, customs or import duties or like incidental charges in connection with the supply of goods or services by Supplier to an Eligible Customer to the extent that payment thereof imposes collection or reporting requirements or duties on the payor. Supplier shall be responsible for any such taxes or charges or shall look to the Eligible Customer for payment thereof.
4.3 Force Majeure. Skyscend will not be liable for any failure or delay in performance of its obligations hereunder to the extent caused by any event or circumstance beyond its reasonable control, including without limitation acts of God, war, terrorism, fire, flood, or failure of communications.
5.2 Effect of Termination. Upon termination of this Agreement, Supplier shall no longer be entitled to accept Invoice Amounts, and Supplier’s right to access the Site shall be terminated. Termination shall not otherwise affect the rights and obligations of the Parties arising out of events occurring prior to termination, and all terms and provisions of this Agreement shall continue in full force and effect until the respective obligations of the Parties hereto have been satisfied in full. Without limiting the generality of the foregoing, each Party shall remain obligated pursuant to this Section 5.2 and Section 4, Section 6 and Section 7.
6. CONFIDENTIAL INFORMATION.
7.1 Modifications; Waivers, Integration.
7.1.1 Skyscend may modify this Agreement from time to time. Upon any modification to this Agreement, Skyscend will provide Supplier with notice of the modification and will post the modified Agreement on the Site, together with a description of the modifications made to this Agreement. The modified Agreement will be effective upon Supplier selecting the “I Accept” button at the bottom of the notice of such modifications. Should Supplier object to any modification, Supplier’s sole recourse is to reject the modified Agreement and to terminate its use of the Site. This Agreement may not otherwise be modified, except in writing signed by both parties.
7.1.2 No delay or failure on the part of either Party in exercising any right or remedy hereunder shall operate as a waiver thereof or of any other right or remedy. No waiver whatsoever shall be valid unless in writing, signed by the Party to be charged, and then only to the extent therein set forth.
7.2.1 All notices shall be effective upon:
(a) The sending of an email to one of the email addresses below;
(b) The sending of a communication on the Site, as permitted on the Site; or
(c) Delivery to a recognized overnight delivery service of a properly addressed notice, delivery prepaid, with instructions to make delivery on the next Business Day.
7.2.2 The addresses of the Parties are as set forth below or as may otherwise be posted on the Site by a Party or specified from time to time in a writing sent by one Party to the other in accordance with the provisions hereof:
Address: 1145, Hightower Train
Atlanta, GA - 30350
Attention: Kumar Hadimani
7.3 Assignment. Supplier shall not assign or otherwise transfer this Agreement, in whole or in part, or delegate or subcontract any of its rights or obligations hereunder, without Skyscend’s prior written consent, such consent not to be unreasonably withheld. Any attempted transfer or delegation by Supplier without Skyscend’s consent will be void. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
7.4 No Proceedings. Supplier agrees that it shall not institute against, or join any other person in instituting against, Skyscend any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal, state or other bankruptcy or similar law, of any jurisdiction for one year and one day after all debt obligations (including, without limitation, commercial paper obligations) of Skyscend have been paid in full.
7.5 Recourse against Certain Parties. No recourse under any obligation or agreement of Skyscend hereunder shall be had against any member, manager, investor, affiliate, officer, employee or director of Skyscend by the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute or otherwise, it being expressly agreed and understood that the agreements of Skyscend contained herein are, in each case, solely limited liability company obligations of Skyscend and that no personal liability whatsoever shall attach to or be incurred by the members, managers, investors, affiliates, officers, employees or directors, as such, or under or by reason of any obligation or agreement of Skyscend contained herein, or be implied therefrom, and that any and all personal liability of every such incorporator, stock member, manager, investor, affiliate, officer, employee or director of Skyscend for breaches by Skyscend of any such obligations or agreements, which liability may arise either at common law or at equity, by statute or otherwise, is hereby expressly waived as a condition of and in consideration for the execution of this Agreement by Skyscend.
7.6 Waiver of Consequential Damages, Etc. In the event of a breach of this Agreement by Skyscend, Supplier hereby waives any right or claim to consequential, special, exemplary or punitive damages, and any claim for damages that Supplier may have arising out of the breach of this Agreement by Skyscend shall be limited to actual damages.
7.7 Choice of Law. This Agreement and all transactions contemplated hereunder and/or evidenced hereby shall be governed by, construed under, and enforced in accordance with the internal laws of the State of Georgia.
7.8.1 Any suit, action or proceeding arising hereunder, or the interpretation, performance or breach hereof, including an action in tort, shall, if Skyscend so elects, be instituted in the United States District Court for the Northern District of Georgia or any court sitting in Atlanta, Georgia (the “Acceptable Forums”).
7.8.2 Supplier agrees that the Acceptable Forums are convenient to it, and irrevocably submits to the jurisdiction of the Acceptable Forums and waives any and all objections to jurisdiction or venue.
7.8.3 Should such proceeding be initiated in any other forum, Supplier waives any right to oppose any motion or application made by Skyscend to transfer such proceeding to an Acceptable Forum.
7.9 Interpretation. This Agreement and all agreements relating to the subject matter hereof are the product of negotiation and preparation by and among each Party and its respective attorneys, and shall be construed accordingly.
7.10 Conflicts with Other Agreements. Unless otherwise expressly stated in any other agreement between the Parties hereto, if a conflict exists between the provisions of this Agreement and the provisions of such other agreement, the provisions of this Agreement shall control.
7.11.1 This Agreement may be signed in any number of counterparts, each of which shall be an original, with the same effect as if all signatures were upon the same instrument.
7.11.2 Delivery of an executed counterpart of the signature page to this Agreement by facsimile shall be effective as delivery of a manually executed counterpart of this Agreement, and any Party delivering such an executed counterpart of the signature page to this Agreement digitally to any other Party shall thereafter also promptly deliver a manually executed counterpart of this Agreement to such other Party, provided that the failure to deliver such manually executed counterpart shall not affect the validity, enforceability, or binding effect of this Agreement.
7.12 Third Parties.
7.12.1 Each Eligible Customer may rely as an intended third party beneficiary upon Section 2.4.2.
7.12.2 This Agreement shall not otherwise confer any rights upon any Eligible Customer or any other party other than the Parties hereto.
7.13 Service of Process. In lieu of the methods of service set forth in applicable state law, service of process may be made by delivery of process, properly addressed, to a recognized nationwide mail delivery service or United States Postal Service.
7.14 Partial Invalidity. The invalidity or unenforceability of any one or more sections of this Agreement shall not affect the validity or enforceability of its remaining provisions.
7.15 Section Headings. Captions are for the ease of reference only and shall not affect the meaning of the relevant provisions.
7.16 Acknowledgement. Supplier acknowledges that Supplier has read and understood this Agreement; and that this Agreement has the same force and effect as a signed agreement.