Revised August 25, 2023
This Keep Statement Advance Agreement “Agreement” is a legal agreement between Client and Keep and governs your use of the Statement Advance Services. In this Agreement, unless specifically stated to the contrary, “Client” or “you” means the business that is applying for or has opened a Keep Account to use Keep’s Services, and “Keep”, ”Company”, “Us”, “Our” or “we” means Keep Technologies Corp. and its past, present, or future affiliates, successors, and assigns, unless stated otherwise.
References to “Keep Statement Advance Agreement” or “Statement Advance Agreement” mean this document that you are reading and any terms, agreements, and policies referenced herein.
Client and Keep may be collectively referred to herein as the “Parties” and each a “Party.” Client may request a copy of this Agreement by emailing Keep at support@trykeep.com.
Advance Services or Statement Advance Services – shall mean the service provided within this agreement.
Deposit Account – shall mean Client’s bank accounts to which the proceeds of daily settlement are being remitted by the Processor and to which Company has been given access as further described in sec. 7;
Failure To Pay - shall mean the inability or unwillingness to pay your Outstanding Balance on the specified due date within your Periodic Statement as defined in the Keep Cardholder Agreement, whether by intent, non-sufficient funds or technological or service failure outside of Keep’s control, up to and including delays by your banking institution.
Future Receivables – shall mean Client’s future receipts and contract rights arising from or relating to any proceeds of sale received by and accepted as a form of payment by Client;
Client – shall mean the client signatory to this Agreement and shall include any of its holding companies, affiliates and/or subsidiaries in the case of a corporate entity; or any and all partners in the case of a partnership;
Outstanding Balance - shall mean amounts owed to Keep for Charges, Fees, or Fines on Cards.
Periodic Statement or Statement - shall mean the periodic statements that reflect activity for all Cards issued to Client identifying Charges, Fees, Fines, refunds, or other amounts owed or credited to your Keep Account during the time covered by that statement.
Processor – shall mean credit card/debit card processor(s) for the processing of debit/credit cards transactions;
Purchase Price – shall mean the amount agreed upon by the Parties and paid by the Company for Client’s Future Receivables, as further defined herein;
Purchased Receivables – shall mean the amount specified in Schedule A, which constitutes the total amount payable by Client to Company in consideration for the Purchase Price;
Set Amount – shall mean the amount specified in Schedule A, which constitutes a fixed dollar amount as determined by Client and Company; and
Repayment Frequency - shall mean the frequency of repayments in equal installments as mutually agreed upon by the Parties from the following available options: Daily, Weekly, Bi-Weekly, Monthly
Specified Percentage – shall mean the amount specified in Schedule A, which constitutes a percentage of the total amount of payments processed by Client on any given day.
Until the Purchased Receivables have been paid to Company in full, Client shall have settlements made by its Processor(s) or banks deposited into Deposit Account(s) at a frequency chosen solely by Keep of either Daily, Weekly or Monthly as described below. If no frequency is chosen, the default shall be deemed to be Daily. In the event that any Processor Agreement is terminated for any reason and/or Client enters into any new Processor Agreement, Client must notify Company immediately and no later than 30 days before such change comes into force.
Client hereby agrees to indemnify, defend and hold harmless Company, and its shareholders, directors, officers, managers, owners, affiliates, employees, agents and representatives (the “Indemnitees”) from and against any claim, demand, loss, financial or otherwise, damage, liability or cost, including legal fees and expenses, caused by or from: (i) any intentional, negligent or innocent misrepresentation by Client; (ii) a breach of the terms hereof; (iii) an Event of Default; (iv) negligence, fraud or intentional wrongdoing by Client or any of its affiliates.
Client hereby represents, warrants and covenants to Company, and declares that Company relies on such representations and warranties in its decision to enter into this Agreement, as follows on the date hereof and so long as any amount is owing from Client to Company hereunder: (i) Client shall not change, terminate, limit or otherwise modify its operations, business structure, ownership or any other characteristics of its business which, in the view of a reasonable business person, could jeopardize or limit Company’s rights under this Agreement, without express written consent of Company; (ii) all of the information provided by or on behalf of Client to Company on its application and in connection with this Agreement, is true and correct in all material respects; (iii) Client is in compliance with all applicable laws, rules, regulations, permits, licenses, approvals, consents and other authorizations necessary to conduct its business; Client is in compliance with any and all applicable federal, provincial and local laws rules, regulations, and possesses and is in compliance with any and all permits, authorizations and licenses, approvals and consents to own, operate and lease its properties, and to conduct the business in which it is presently engaged; (iv) Client, and the individual(s) signing this Agreement on behalf of Client, have full power and authority to enter into and perform the obligations of Client under this Agreement, all of which have been duly authorized by all necessary and proper action and are not in contravention of the Client’s articles or by-laws or any unanimous shareholder agreement; (v) there is no criminal proceeding or civil claim, action, suit, demand, enforcement, arbitration or other proceeding or investigation pending before any court, government agency, arbitration panel, or administrative tribunal or, to Client’s knowledge, threatened against Client, involving a dispute(s) of more than $5,000 in the aggregate; (vi) Client is the owner or authorized lessor of its business premises and has presented documentation verifying to this extent to Company; (vii) Client has not entered into an agreement similar to this Agreement with another company for which any sums are still outstanding; (viii) neither Client nor any of its principals have declared bankruptcy in the past two years and neither are undischarged bankrupts; (ix) no portion of the Future Receivables, or any other assets pledged pursuant to this Agreement, is subject to any lien, security interest, assignment, option or encumbrance, other than the security interest(s) granted to Company, Client’s current credit card and/or debit card processor(s) pursuant to existing agreements, and/or Client’s bank(s) pursuant to existing banking agreements; (x) Client has filed or caused to be filed any and all federal, provincial, local and foreign tax returns which are required to be filed, and has paid or caused to be paid any and all taxes as shown on such returns or on any assessment received by Client to the extent that such taxes have become due, and Client has no knowledge of any material liability for any tax to be imposed on Client or any of its assets or properties for which adequate provision has not been made in its financial statements; (xi) Client and Guarantor (as defined hereinafter) are solvent, do not have any outstanding payables past thirty (30) days and have no knowledge of any potential or real material changes to Client or Guarantor pending in the next ninety (90) days (and its underlying client); and (xiii) during the term of this Agreement, Client shall proceed with the batch closing of this credit and debit cards payments no less than ten (10) times per month; (xii) each Future Receivable, when created, shall be a legal, valid and binding obligation of the Client; (xiii) any and all representations made in this Agreement, and any and all financial statements delivered to the Company, are true and correct, and no material fact has been omitted; and (xiv) each and all of the foregoing representations shall be deemed to be continuing covenants of Client, and shall remain true and accurate at all times after the date of this Agreement, until the Purchased Receivables have been paid in full.
Client and Company agree that the purchase of the Purchased Receivables shall be deemed on the date of Client’s Failure To Pay with title in and to the Purchased Receivables passing to Company on such date. Client and Company also agree that Company, at its sole discretion, may refuse to purchase the Purchased Receivables for any or no reason. Client and Company further agree that Company will not, at anytime, be providing funds directly to client in consideration for this purchase.
In addition to any event of default described as such in this Agreement, any of the following shall constitute an “Event of Default”:
(i) Client fails to direct all payments relating to the credit card and debit card receivables exclusively to the Deposit Account(s) or changes, terminates or closes the Deposit Account(s) without the prior written agreement of Company;
(ii) Client refuses to accept a debit or credit card as a form of payment regardless of the amount of the sale;
(iii) Client obtains additional financing or advances without the express prior written consent of Company;
(iv) Client, without the prior written consent of Company, enters into any transaction involving the sale of Client, or any substantial change in its ownership or controlling interest;
(v) Client sells or otherwise hypothecates or grants security or otherwise encumbers the Future Receivables to another person, company or entity;
(vi) any of the representations, warranties and covenants contained in this Agreement are not true or are materially incorrect or misleading;
(vii) Client fails to make any remittance or payment provided for hereunder or pursuant to any settlement, arrangement or payment plan agreed upon by the parties in connection with this Agreement, or breaches any other covenants contained in this Agreement; or
(viii) except as otherwise permitted herein, Client permits any lien, security interest or hypothec to be granted against or registered against the Purchased Receivables or any proceeds therefrom or a Deposit Account(s);
(ix) bankruptcy order or receivership of either Client or guarantor or a general assignment in bankruptcy. For greater certainty, any act or omission carried out by an affiliate, shareholder, director, officer, employee or agent of Client that, if carried out by Client itself, would be an Event of Default, shall be deemed to be an Event of Default hereunder. Client hereby acknowledges and agrees that, in order to verify Client’s compliance hereunder, Company shall have a right of access, during the regular working hours, to any premises where Client conducts.
Upon the occurrence of an Event of Default, Company shall be entitled to all remedies available at law as well as the right to terminate this Agreement and recover by EFT or via other means acceptable to Company, from the Deposit Account(s) or any other account maintained by Client any unpaid portion of the Purchased Receivables and any other amounts payable to Company under this Agreement. In any action for breach of the Agreement, Company shall be entitled to damages equal to the Purchase Price less the amount received by Company from remittances to the said date, together with legal costs and a charge amounting to the greater of $500 or 10% of the amount outstanding at the time of the Event of Default, intended as liquidated damages and not a penalty fee. In the event that any payment to be made by Client hereunder, whether by EFT, cheque, credit card or pre- authorized debit, is refused for insufficiency of funds or for any other reason whatsoever, or in the event that immediately prior to withdrawal of any pre-authorized debit payment Client does not have sufficient funds in the Deposit Account (an “NSF Payment”), Company shall be entitled to charge to Client, for each NSF Payment, CAD$100. In the event Client changes its Deposit accounts without prior written authorization of the Company, Company shall be entitled to charge the Client a fee of CAD$250.00 intended as liquidated damages and not a penalty.
In entering into this Agreement, the Client is acting in its capacity as a business enterprise and not as a consumer. Client acknowledges and agrees that this transaction is made only for business purposes and not for personal, family or other household purposes and agrees to waive any application of the consumer protection laws to this Agreement
The Company’s failure to exercise any right under this Agreement does not constitute a waiver on the Company’s part to exercise such rights at a later time. Nor shall any singular or partial exercise of any right under this Agreement preclude the Company from any other future exercise of any right. The remedies provided hereunder are cumulative and not exclusive of any remedies provided by law or equity.
This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors, heirs and assigns.
Any notice to Company required or permitted under this Agreement shall be in writing and may be given by personal service, registered or first class mail, postage prepaid, to the address of Company as it appears above, or as changed through written notice to Client.
The Parties hereby agree, declare and consent that the transaction contemplated herein shall not constitute a loan and laws applicable to loans shall not apply to it. Company does not charge any interest, finance charges, late fees or similar charges as the transactions contemplated herein are not intended to constitute a loan. Instead, Company is purchasing the Future Receivables at a discount. There are no scheduled payments for Client and no repayment term for Client. Company is not an investor in the business of Client. Client is responsible to account for the transactions made herein in accordance with the provisions hereof and acknowledges that Client’s method of accounting, if in contradiction with the terms hereof, shall not change in any way the nature of the transactions contemplated in this agreement nor bind Company in any way to account in the same manner. In the case of any Event of Default, Client agrees to pay to the Company a fee of $250.00. Notwithstanding the foregoing and for greater certainty, should it be determined by an applicable authority that the transaction contemplated by this Agreement constitutes a loan and should it be determined that any provision of this Agreement would oblige Client to make any payment which is construed by an applicable authority to be an amount which would be prohibited by applicable law, then notwithstanding such provision, such amount shall be deemed to have been adjusted nunc pro tunc to the maximum amount, as the case may be, as would not be so prohibited by applicable law, such adjustment to be affected by reducing the Purchased Receivables under this Agreement until such amount becomes equal to the Purchase Price. Notwithstanding the potential reduction contemplated in this sec. 22, nothing herein constitutes agreement that the transactions contemplated by this Agreement are loans or are intended to be loans.
Company shall be entitled to recover from Client any and all reasonable costs and legal fees (on a substantial indemnity basis) associated with and/or resulting from the enforcement of its rights and remedies hereunder or at law.
This Agreement contains the entire understanding of the parties hereto and supersedes all prior negotiations, whether oral or written. No changes to this Agreement shall be valid or enforceable, unless made by both parties in writing, in which case such change shall come to force of the date of the later party signing the change
Should any term or provision of this Agreement be deemed invalid, illegal or unenforceable, then such invalid, illegal or unenforceable term or provision shall be null and void, and all other terms and provisions of this Agreement shall continue in full force and effect as though such invalid, illegal or unenforceable term or provision had never been a part hereof.
This Agreement shall be governed by and to be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein without regard to principles of conflicts of law and treated in all respects as an Ontario contract. The parties to this Agreement hereby irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Ontario.
The parties have requested that this Agreement be drawn in English language.
Client represents that:
(i) they have read and understood the TERMS AND CONDITIONS set out in this Agreement,
(ii) they have the signing authority to bind their respective corporate entities or businesses to all terms and conditions stipulated in this Agreement and
(iii) each party had an opportunity to review this Agreement and receive legal or any other advise it deems necessary;
(iv) Client has taken all corporate or other proceedings necessary to authorize the execution and delivery of this Agreement by Client and Client’s performance of its obligations hereunder.
Initial Purchase and Sale Schedule
