Terms and Conditions
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General Terms and Conditions
Fuel Network Discount Program. Subject to the terms and conditions set forth in the Agreement, Member is entitled to discounts on the purchase of fuel at participating fueling stations by Member on the Card (as defined below). Member’s membership status may entitle Member to certain additional discounts and benefits as described here: https://www.rcpasave.com/vendor. Member acknowledges and agrees that: Member is entitled to receive fuel discounts at any fueling stations that accept cards branded with the logo from the Card’s association. The fuel purchase discount is not available to Member through the purchase by Member by means other than on the Card. Further, applicable fuel discounts and rebates are provided at the sole discretion of RCPA and are subject to monthly review by RCPA. RCPA may change the terms of applicable discounts and rebates on a monthly basis without additional notice to Member. The program described in this Agreement shall be referred to as the Fuel Network Discount Program.
Authorized Card User; Nature of Card Account. In connection with Member’s membership in the Fuel Network Discount Program, Member shall be added as an authorized user of a certain RCPA credit card account (“Account”) established by Fifth Third Bank (the “Issuer”). In connection with such Account, RCPA shall cause Issuer to provide to Member and its authorized employees one or more special Comdata®MasterCard Corporate Cards® (each a “Card” and collectively “Cards”). All Cards are issued to Member as an authorized user under the Account as part of Member’s membership in the Fuel Network Discount Program. Member acknowledges and agrees that Member has no ownership rights in or to the Cards and the Cards must be returned or destroyed (with certification of destruction) to RCPA or the Issuer upon either’s request. RCPA or the Issuer, each in its sole and absolute discretion, may cancel, revoke, repossess, or restrict the use of the Cards at any time.
Member Representations and Warranties. As of the Effective Date and on each date Member or any of its authorized employees uses a Card, Member represents and warrants the following to RCPA and Issuer:
Member is a commercial enterprise, and no Card will be used for personal, household or consumer purposes;
Member is not registered with FinCEN as a money service business, is not a licensed money transmitter, and is not a payment aggregator or bill payment facilitator;
Each Card will be used solely for authorized and legitimate business purpose charges and Member will have neither consumer law rights nor remedies available to consumers associated with respect to any purchases, charges or other activity associated with the Card;
Each Card will be used only by Member and its authorized employees and Member shall not suffer or permit any third party (including any affiliate of Member) to use any Card;
Each Card will be used only for valid and lawful purposes and will not be used for gambling, illicit drug transactions, or any unlawful purposes including without limitation (i) other illegal purchases of goods or services, regardless of whether such transaction violates the laws applicable in the territory where the transaction was initiated or merchant is located, or (ii) purchases that are prohibited by law, rule, or regulation; and
No Card will be used in any way that would cause RCPA to violate any applicable law, rule, or regulation.
If Member uses, or allows someone else to use, the Card in violation of the above representations and warranties or for any purpose other than as provided herein, RCPA may immediately suspend Member’s use of the Cards and Member’s membership in the Fuel Network Discount Program.
Card Limits Subject to Credit Information. Member’s Cards are subject to weekly credit limits to be established by RCPA in its sole and absolute discretion. Weekly credit limits are subject to periodic review and adjustment by RCPA in its sole and absolute discretion. Member agrees to provide financial information to RCPA as RCPA may request, including, without limitation, annual financial statements within a reasonable time after the request therefor. Member authorizes RCPA, Issuer, and their agents to make any credit investigation as any of them deem necessary and appropriate and to request reports from credit bureaus in connection with this Agreement and/or the Cards.
Security. From time-to-time RCPA may request Member to provide security for the performance when due of Member’s obligations hereunder. Member understands and agrees that it is under no obligation to provide RCPA with such security, but the refusal to provide security when requested may result in adverse credit determinations by RCPA, Issuer, and their agents.
Payment Terms; Fees. (a) Member acknowledges and agrees that Member is not obligated for repayment to Issuer of any amounts owing under the Account. However, as consideration (in part) for Member’s membership in the Fuel Network Discount Program, Member hereby agrees to reimburse RCPA for any credit extended to RCPA by Issuer as a result of Member’s use of the Card, along with any interest, fees or charges that are imposed on Member’s outstanding balances and any fees and charges related to Member’s use of the Card. To the extent these Terms and Conditions reflect interest, costs, fees or charges associated with the use of the Card, Member understands and agrees that Member will be responsible for such interest, costs, fees, or charges only to such extent that RCPA incurs such from Issuer as a result of Member’s use of the Card. These Terms and Conditions are intended to reflect the costs of credit to RCPA as the primary obligor under the Account with Issuer, and that Member, as authorized user, agrees to be liable to RCPA for Member’s purchases under this Agreement through the Cards. Member acknowledges and agrees that the total amount reimbursable to RCPA under this Agreement shall be the total amount of Member’s purchases on the Cards in in the immediately preceding month plus any fees and charges related to Member’s use of the Card (the “Total Amount Due”). RCPA shall send, or cause to be sent, a weekly invoice to Member by email, and each invoice shall identify the invoice date and specify the corresponding payment due date. Member agrees to pay RCPA the Total Amount Due on each invoice by the applicable payment due date. (b) If Member does not make full payment of the Total Amount Due on the applicable due date, then Member shall pay a late payment fee equal to the greater of: (i) $150 or (ii) 9.99% of the past due portion of the Total Amount Due. In no event will such late charge exceed the lesser of $5,000 or the maximum amount permitted by applicable law. In addition, in the event the Total Amount Due is not paid by the due date, then Member may be assessed a default interest charge at a rate equal to the weekly average prime loan rate as published by the Federal Reserve plus 4% per annum. The default interest is assessed on the Total Amount Due (excluding any late fees and any previous default interest charges) for the period of time such amount remains unpaid beyond the due date. In no event will the default interest rate exceed the maximum rate permitted by applicable law. (c) If any payment made by Member to RCPA is dishonored or otherwise returned unpaid, RCPA may require Member to pay a $45 Processing/NSF Failure fee to cover internal administrative costs and any processing charges, or the maximum amount permitted under applicable law, whichever is less. (d) RCPA has the right to change or add fees upon giving fifteen (15) days’ prior notice. Member will be given notice in the event of any such change or addition related to fees.
Term; Termination. This Agreement is for the Initial Term of one (1) year and commencing on the Effective Date. Thereafter, the Agreement shall automatically renew for consecutive, successive terms of one (1) year each, unless and until one party provides notice of non-renewal to the other party. Member may cancel its membership in the Fuel Network Discount Program, without giving a reason, at any time by contacting RCPA. RCPA may terminate this Agreement for any reason by providing ten (10) days’ notice but may immediately terminate the Agreement in the event of Member’s breach or default of this Agreement. Grounds for Member’s breach or default of this Agreement include, without limitation: (a) failure of Member to pay any amount from time to time owing under this Agreement; (b) the existence of any bankruptcy, insolvency, reorganization, or similar proceedings involving Member; (c) the appointment of, or Member’s application for, a receiver, trustee, custodian, sequestrator or similar office for Member for a substantial part of its property or assets; (d) the winding up or liquidation of Member; and (e) Member’s material breach of any provision of this Agreement. In addition to any rights or remedies available to RCPA, in the event of such breach or default, RCPA shall also have the right to immediately suspend Member’s access to the Cards until such breach is cured. In addition to any other rights of termination, RCPA may terminate this Agreement upon prior written notice with respect to any individual state or jurisdiction if it can demonstrate, with documentary support, that changes in applicable laws, network rules, or regulations or the interpretation thereof will make the performance of RCPA’s obligations under this Agreement not commercially feasible. The effective date of termination under the preceding sentence will be thirty (30) days from the date notice is delivered, or upon the effective date of the new law or regulation, whichever occurs sooner. Additionally, Member’s membership in the Fuel Network Discount Program, including as an authorized user may be suspended and/or this Agreement may be terminated by RCPA immediately if there has been no activity for six (6) months or longer. Member’s obligation to pay for all outstanding amounts incurred before the effective date of termination of this Agreement shall survive termination.
Amendments. In addition to its rights set forth elsewhere in this Agreement, RCPA may amend, modify, supplement, or change the terms of this Agreement from time to time in its sole discretion. RCPA will notify Member of any changes by delivering notice to the primary email address or mailing address associated with Member’s Account or by posting to RCPA’s website or customer portal. Notice may include a summary of the amendment or a reference or link to the amended Agreement which shall be available at RCPA’s website or customer portal. Member is responsible for reviewing such amendments. Unless a longer notice period is required by applicable law, changes will be effective thirty (30) days after notice is provided. Member’s continued use of the Account after the effective date of any amendment constitutes Member’s acceptance of the amendment. If Member does not agree to an amendment, Member may terminate the Account prior to the effective date by providing written notice and paying all outstanding amounts due.
Disputed Items. Member must notify RCPA in writing of any disputed item on Member’s invoice or account statement within sixty (60) days from the date of the invoice or account statement, or the item will be deemed undisputed and accepted by Member. Member is required to initiate and complete the dispute process directly with Comdata and must obtain a ticket number or other written confirmation of the dispute from Comdata. Member must include the Comdata ticket number or confirmation with its written notice to RCPA. Unless required by law, RCPA is not responsible for resolving disputes between Member and Comdata or between Member and any merchant. If Member has a dispute with a merchant, Member must seek resolution directly with the merchant and remain obligated to reimburse RCPA for all amounts owed under this Agreement.
Limitation of Liability. IN NO EVENT SHALL RCPA BE RESPONSIBLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER RCPA WAS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. RCPA MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Liability of Acts of Members, Employees, and Agents. Member agrees to indemnify, defend, and hold RCPA harmless from any and all liability resulting from the acts of Member and any employees or agents of Member, which acts shall include but are not limited to negligent acts and willful misconduct of such persons, or from the breach by Member of its obligations under this Agreement. For purposes of this Paragraph 10, any person who is given authorization by Member to use Cards shall be deemed an employee or agent of Member.
Right of Setoff and Recoupment. RCPA shall have the right to setoff and apply any amounts owing by RCPA to Member against any amounts owing from Member to RCPA pursuant to any Agreement between RCPA and Member or any amounts in the possession of or under the control of RCPA.
Notices; Member Contact. All written notices required to be given by this Agreement shall be deemed to be duly given if delivered personally or sent by U.S. certified mail or overnight courier to RCPA, 5511 Virginia Way, Brentwood, TN 37027, attention: President, with copy to attention: Legal Department; or to Member at the address listed on the Signature Page. In addition to the foregoing, any notice, statement, disclosure, agreement, or other communication from RCPA to Member may be provided by electronic means. Electronic delivery may include, without limitation, sending via email or posting to an online account portal. Member agrees to keep the primary email address and phone number up to date at all times. Member acknowledges and agrees that it is responsible for retaining copies of all communications. Member consents to RCPA’s and RCPA’s affiliates’ contacting Member and Member’s employees concerning RCPA’s and its affiliates’ products and services. Member hereby consents that the means of such contact may include phone calls and/or SMS messages (including through the use of autodialer technology) to Member and Member’s employees mobile or home phone numbers, to the extent such are provided to RCPA by Member.
Government Regulation. IMPORTANT INFORMATION ABOUT PROCEDURES FOR BEING A RCPA MEMBER- To help the government fight the funding of terrorism and money laundering activities, federal law requires RCPA to obtain, verify, and record information that identifies Member and, where applicable, owners of 25% or more of Member, persons with significant management responsibility of Member, and any guarantor or co-maker (collectively “Beneficial Owners”) as part of initial and on-going Member review processes. Therefore, RCPA may, at RCPA’s option, require Member to provide various identifying information that will allow RCPA to properly identify Member and Beneficial Owners, which may include but not be limited to name, address, taxpayer identification number, and other information. Member represents and covenants that Member and each Beneficial Owner (a) is not currently and shall not become subject to any law, regulation or list of any government agency (including, without limitation, the U.S. Office of Foreign Asset Control list) that prohibits RCPA from making any advance or extension of credit to Member or from otherwise conducting business with Member, and (b) Member shall provide to RCPA, when requested, documentary and other evidence of Member’s identity or the identity of each Beneficial Owner and any person to whom Member provides a Card, so that RCPA may comply with any applicable law or regulation or RCPA’s AML Policy.
Waiver of Jury Trial; Binding Arbitration. Except as provided below, Member or RCPA may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between or among such parties arising from or in any way relating to this Agreement or the relationship of such parties, including without limitation claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision, and no matter what legal theory such claims are based on or what remedy (damages, or injunctive or declaratory relief) such claims seek (a “Claim”). The party filing for arbitration must choose one of the following arbitration firms and follow its rules and procedures for initiating (including paying the filing fee) and pursuing arbitration before a single neutral arbitrator: American Arbitration Association or JAMS. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. Claims subject to arbitration include not only our Claims and your Claims, but also Claims made by or against anyone connected with us or you or claiming through us or you, such as a co-applicant or authorized user of your account, an employee, agent, representative, affiliated company, predecessor or successor, heir, assignee, or trustee in bankruptcy.
Right to Litigate Collection Claims. Notwithstanding the foregoing, either party may pursue a claim for the collection of amounts due under this Agreement through a judicial proceeding in a court of competent jurisdiction in the State of Tennessee. RCPA may, without waiving its right to arbitrate other disputes, elect to initiate a court proceeding to recover unpaid balances, enforce payment obligations, or obtain injunctive relief relating to nonpayment. This exception is limited to direct collection actions and shall not apply to any other claims.
Exclusive Venue for Judicial Proceedings. To the extent any Claim is brought in a court rather than through arbitration (including, without limitation, any action to collect compel arbitration, stay litigation pending arbitration, confirm or vacate an arbitration award, or any individual small claims action), such Claim shall be brought exclusively in a state or federal court located in the State of Tennessee, and the parties irrevocably submit to the personal jurisdiction and venue of such courts.
Can I assert or participate in a class action? To accommodate the right to arbitrate, you agree that you will neither assert, nor participate in, a class action or other representative action or proceeding related to this Agreement, the Cards, or any other aspect of your relationship with RCPA. Claims must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis.
Who can be a party? The arbitrator will not award relief for or against anyone who is not a party. If you or we require arbitration of a Claim, neither you, we, nor any other person may pursue the Claim in arbitration as a class action, private attorney general action or other representative action, nor may such Claim be pursued on your or our behalf in any litigation in any court. Claims, including assigned Claims, of two or more persons may not be joined or consolidated in the same arbitration.
What Claims are subject to arbitration? All Claims relating to this Agreement or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims. A party who initiates a proceeding in court may elect arbitration with respect to any Claim advanced in that proceeding by any other party. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.
What time frame applies to Claims subject to arbitration? Claims arising in the past, present, or future, including Claims arising before the opening of your account, are subject to arbitration.
Broadest interpretation. Any questions about whether Claims are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced. This arbitration provision is governed by the Federal Arbitration Act (the “FAA”).
How does a party initiate arbitration? The party filing an arbitration must choose one of the following arbitration firms and follow its rules and procedures for initiating and pursuing an arbitration: American Arbitration Association (AAA) or JAMS. Any arbitration hearing that you attend will be held at a place chosen by the arbitration firm in the same city as the U.S. District Court closest to your then current billing address, or at some other place to which you and we agree in writing. At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time, or in connection with any particular Claims, that party can still require arbitration at a later time or in connection with any other Claims.
What procedures and law are applicable in arbitration? A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten years of experience or a retired or former judge, selected in accordance with the rules of the arbitration firm. The arbitration will follow procedures and rules of the arbitration firm in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect your account information and other confidential information if requested to do so by you or us. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, will honor claims of privilege recognized at law, and will have the power to award to a party any damages or other relief provided for under applicable law. You or we may choose to have a hearing and be represented by counsel. The arbitrator will make any award in writing and, if requested by you or us, will provide a brief statement of the reasons for the award. An award in arbitration shall determine the rights and obligations between the named parties only, and only in respect of the Claims in arbitration, and shall not have any bearing on the rights and obligations of any other person, or on the resolution of any other dispute.
Who pays? Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay, unless you get a fee waiver under the applicable rules of the arbitration firm. The arbitrator may allocate all or part of the initial filing fees in the award. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. All fees will be allocated as provided by the rules of the arbitration firm and applicable law. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails.
When is an arbitration award final? The arbitrator’s award is final and binding on the parties unless a party appeals it in writing to the arbitration firm within fifteen days of notice of the award. The appeal must request a new arbitration before a panel of three neutral arbitrators designated by the same arbitration firm. The panel will consider all factual and legal issues anew, follow the same rules that apply to a proceeding using a single arbitrator, and make decisions based on the vote of the majority. Costs will be allocated in the same way they are allocated for arbitration before a single arbitrator. An award by a panel is final and binding on the parties after fifteen days has passed. A final and binding award is subject to judicial review and enforcement as provided by the FAA or other applicable law.
Survival and Severability of Terms. This arbitration provision shall survive: (i) termination or changes in the Agreement, the account, or the relationship between you and us concerning the account; (ii) the bankruptcy of any party; and (iii) any transfer, sale or assignment of your account, or any amounts owed on your account, to any other person or entity. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. Any different agreement regarding arbitration must be agreed to in writing.
Governing Law, Venue, and Jurisdiction. This Agreement shall be governed by and construed exclusively in accordance with the laws of the State of Tennessee, without regards to any applicable principles of conflicts of law. A dispute that is not subject to arbitration under Section 15 of this Agreement shall be brought in a state or federal court located in Tennessee; and we and you each irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts of Tennessee for the adjudication of all non-arbitral claims.
Class Action Waiver. To the fullest extent permitted by applicable law, Member and RCPA agree that any lawsuit, claim, dispute, or controversy between them shall be conducted and resolved on an individual basis only, and not as part of any class, collective, consolidated, or representative action. Neither Member nor RCPA shall be entitled to join or consolidate claims by or against others or to participate in any lawsuit as a class representative, class member, or in any representative capacity. The parties expressly waive any right to participate in any class, collective, consolidated, or representative proceeding.
Monitoring and/or Recording Communication. Member understands and agrees that RCPA may in its discretion, but is not obligated to, monitor and/or record any telephone calls by Member or its employees and/or agents without any further notice for quality control purposes and for its own protection. RCPA may also monitor, record, and/or make a record of any other communications between Member or its employees and/or agents and RCPA without any further notice, and RCPA may use the resulting information for internal purposes or as may be required by applicable law. Member hereby consents to RCPA’s monitoring and/or recording of any telephone calls and communications with Member or its employees and/or agents. Member acknowledges and understands RCPA may not record all telephone calls or communications, and RCPA does not guarantee that recordings of any particular telephone calls or communications will be retained or be capable of being retrieved.
ACH Authorization. If Member elects to have RCPA initiate payment via ACH, the following shall apply: Member authorizes the bank identified in the Credit Application, ACH Authorization Form, or verbal ACH Authorization to honor ACH debits and credits from RCPA to Member’s bank account. Member represents, warrants and covenants that Member’s designated bank account for payments was established for business purposes and not for personal or household purposes. Member agrees that the bank shall have no obligation to provide Member with notice, advice, or confirmation of any ACH debit or credit, and the bank shall have no liability to Member in connection with any such ACH debit or credit. Member acknowledges that this authorization shall remain in effect until revoked by Member in a written notice delivered to both the bank and RCPA, and such revocation shall not be effective until actually received by both the bank and RCPA, and RCPA and the bank have had a reasonable opportunity to act on such revocation. Member agrees to notify RCPA in writing at least seven (7) business days prior to any change to its designated bank account information. Member further agrees that for a period of 48 hours following RCPA’s confirmation of receipt of such change, Member shall maintain sufficient funds in the existing account to cover any pending or scheduled ACH debits. If any ACH debit is returned unpaid or dishonored for any reason, Member shall indemnify, defend, and hold harmless RCPA from and against any fees, penalties, losses, or expenses incurred by RCPA as a result thereof. RCPA shall have the right to re-initiate any ACH debit that is returned unpaid, to the fullest extent permitted by applicable law. In the event of any erroneous or duplicate ACH credit by RCPA, Member authorizes RCPA to initiate an ACH debit to Member’s account to correct such error and agrees to promptly cooperate with RCPA to facilitate such correction. RCPA shall provide Member with written notice of the cutoff dates applicable to scheduled ACH debits, and Member acknowledges that such cutoff dates may not correspond to the actual posting or settlement date of the transaction, which may occur within 24 to 48 hours following the cutoff date. Member shall ensure that its designated bank account is free of any restrictions or blocks that would prevent RCPA’s ACH debits or credits from being processed and shall indemnify RCPA from any loss or damage resulting from Member’s failure to do so.
Independent Contractors. None of the provisions of this Agreement is intended to create nor shall be deemed or construed to create any relationship between the parties hereto other than that of independent entities contracting with each other hereunder solely for the purpose of effecting the provisions of this Agreement. Neither of the parties hereto, nor any of their respective employees, shall be construed to be the employer of the other. Member and RCPA agree that RCPA is only providing services under this Agreement as an independent contractor.
Taxes. Member is solely responsible for any and all tax related obligations in connection with using the Account or Cards or related services, including, without limitation, proper withholding and reporting, and Member agrees to indemnify and hold RCPA and its affiliates harmless from any and all liabilities, including interest and penalties, which are or may be imposed on RCPA or any of its affiliates pursuant to any such federal, state and local tax laws and regulations.
Press Releases, Publicity, Etc. Member shall not issue any press release or disseminate similar publicity or other information regarding this Agreement or the Service for Member or utilizing the trademarks, service marks, trade names or logos of Member, RCPA, Issuer, or the Networks, including, without limitation, web site information, instructional or marketing materials or brochures, without the express prior written approval of RCPA, Issuer, or the Networks, as appropriate.
Miscellaneous. (a) Upon RCPA’s reasonable request, Member agrees to promptly complete and deliver such further documents as necessary or appropriate in connection with this Agreement. (b) Failure to insist upon strict compliance with any of the terms or conditions of this Agreement shall not be deemed a waiver of such term or condition, nor shall waiver or relinquishment of any right or power hereunder at any time be deemed a subsequent waiver or relinquishment of such right or power. (c) This Agreement, including the Signature Page, these General Terms and Conditions, and any other exhibits, schedules or addenda attached hereto and made a part hereof, constitutes the entire agreement of the parties with respect to its subject matter; supersedes all prior agreements and understandings, oral or written, of the parties with respect to this subject matter; and except as expressly set forth herein, may only be modified by a writing signed by RCPA and Member or by Member’s acceptance of additional or substitute terms delivered to Member by RCPA via phone, website, email, text, or such other means as may be elected by RCPA. (d) Any provision of this Agreement that by its nature is intended to survive termination of this Agreement shall so survive and shall remain enforceable after such termination. (e) The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. (f) In case one or more of the provisions contained in this Agreement or any application thereof shall be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein and any other application thereof shall not in any way be affected or impaired hereby. (g) No provision of this Agreement shall be construed in favor of, or against, any particular party by reason of any presumption with respect to the drafting of this Agreement; both parties, having fully participated in the negotiation of this Agreement, hereby agree that this Agreement shall not be subject to the principle that a contract would be construed against the party which drafted the same. (h) Member may not transfer or assign this Agreement without the prior written consent of RCPA. (i) Member acknowledges and agrees that electronic records and signatures shall have the full legal effect of a writing.
This Personal Guaranty (as the same may be amended, supplemented, or otherwise modified from time to time, “Guaranty”) is entered into between Route Consultant Purchasing Alliance, Inc. (along with any successors and/or assigns (“RCPA”) and each Guarantor identified above and is dated and effective as of the date first indicated above.
Guarantor. If more than one Guarantor is identified above, then each reference to “Guarantor” herein refers to each and every Guarantor identified above and each such Guarantor is directly, jointly and severally with each other and with all other guarantors of the Guaranteed Obligations (as defined below) or any portion thereof, liable to RCPA. The obligations of each Guarantor hereunder are direct and primary and are independent of the obligations of Member or any other such Guarantor, and a separate action may be brought against each Guarantor irrespective of whether an action is brought against Member or any other such other Guarantor or whether Member or any such other Guarantor is joined in such action. Each Guarantor's liability hereunder shall not be contingent upon the exercise or enforcement by RCPA of any remedies it may have against Member or any other Guarantor. Any release which may be given by RCPA to any Guarantor shall not release any other Guarantor. Each Guarantor acknowledges that RCPA shall have the right to seek recourse against each Guarantor to the fullest extent provided for herein and no election by RCPA to proceed in one form of action or proceeding, or against any party or on any obligation, shall constitute a waiver of RCPA's right to proceed in any other form of action or proceeding or against other parties unless RCPA has expressly waived such right in writing.
Guaranteed Obligations. The term “Guaranteed Obligations” means all present and future liabilities, obligations, covenants and duties owing by Member to RCPA, regardless of the manner in which it was created, of any kind or nature, present or future, whether direct or indirect, absolute or contingent, joint or several, due or to become due, primary or secondary, as principal or guarantor; and any amendments, extensions, renewals and increases of or to any of the foregoing, and all costs and expenses of RCPA incurred in the documentation, negotiation, modification, enforcement, collection and otherwise in connection with any of the foregoing, including reasonable attorneys' fees and disbursements, whether made, incurred, or created before or after any entry of order of relief with respect to Member in a bankruptcy case and whether recovery is or hereafter becomes barred by any statute of limitations or otherwise becomes unenforceable for any reason whatsoever.
Guaranty.
Unconditional Guaranty. In order to induce RCPA to make, or continue to make or grant financial accommodations to Member, and in consideration thereof and/or for financial accommodations already or hereafter granted by RCPA to or for the account of Member, Guarantor hereby absolutely and unconditionally guarantees, as a primary obligor, and becomes surety for the full and prompt payment to RCPA of all Guaranteed Obligations when due, whether by acceleration or otherwise, and the full and prompt performance of all terms, covenants, conditions and agreements related to the Guaranteed Obligations.
Guaranty of Payment. This is a guaranty of payment and not collection. In no event shall RCPA be obligated to take any action, obtain any judgment, or file any claim prior to enforcing this Guaranty. Upon failure of Member punctually to pay the Guaranteed Obligations, Guarantor agrees to pay such amounts provided that delay by RCPA in making a demand for payment shall in no event affect Guarantor’s obligations under this Guaranty.
No Termination. This is an absolute, unconditional, irrevocable and continuing guaranty and will remain in full force and effect until all of the Guaranteed Obligations have been indefeasibly paid in full, and RCPA has terminated this Guaranty.
Enforcement Costs. To the extent that RCPA incurs any costs or expenses in protecting or enforcing its rights under the Guaranteed Obligations or this Guaranty, including reasonable attorneys’ fees and the costs and expenses of litigation, such costs and expenses will be due on demand, will be included in the Guaranteed Obligations.
Waivers. Guarantor hereby expressly waives: (a) notice of the acceptance by RCPA of this Guaranty; (b) notice of the existence or creation or non-payment of all or any of the Guaranteed Obligations; (c) notice of extensions of credit to Member from time to time; (d) notice of default, diligence, presentment, demand on Member for payment or otherwise, requirement of a prior proceeding against Member, dishonor, protest, and all other notices whatsoever; and (e) diligence in collection or protection of or realization upon the Guaranteed Obligations, or any part thereof, any obligation under this Guaranty or any security for or guaranty of any of the foregoing. Guarantor waives any and all claims, counter-claims and defenses that Guarantor may now and in the future have against RCPA, Member or any other guarantor of the Guaranteed Obligations that may cause RCPA to lose any rights against Guarantor or against Guarantor’s property or assets, and agrees that the Guaranteed Obligations shall not be discharged except by complete payment thereof, irrespective of: (f) any claim as to the genuineness, validity, regularity, or enforceability of the Guaranteed Obligations or this Guaranty; (g) the lack of authority of Member; (h) any modification, supplement, extension, renewal, amendment, or change in the time, manner, or place of payment or performance of any Guaranteed Obligations, or in any other term of or amendment to the documents evidencing the Guaranteed Obligations, all of which may be done without notice to or consent of Guarantor; (i) the order, manner and amount of application of any payments by whomever paid or however realized including any proceeds of any collateral, to any Guaranteed Obligations as RCPA may determine in its sole discretion; (j) any right to require RCPA to notify Guarantor of any nonpayment relating to the Guaranteed Obligations; (k) any waiver or consent by RCPA with respect to the Guaranteed Obligations or any compromise or release thereof, including the release or discharge of Member from the performance or observance of any agreements, covenants, terms or conditions in connection with the Guaranteed Obligations by operation of law or otherwise; (l) the absence of any action to exercise any right, power or remedy, enforce any Guaranteed Obligations, recover any judgment against Member, or enforce a judgment against Member; (m) the occurrence of any event of default or potential event of default under any document evidencing the Guaranteed Obligations; (n) the existence of any bankruptcy, insolvency, reorganization, or similar proceedings involving Member, and Guarantor waives all rights and benefits which might accrue to it by reason of any such proceeding and will be liable to the full extent hereunder, irrespective of any modification, limitation or discharge of the liability of Member that may result from any such proceeding; (o) any setoff, counterclaim, recoupment, deduction, or defense of any kind or nature that may be available to or asserted by Guarantor or Member against Member, RCPA or any of their affiliates, except payment or performance of the Guaranteed Obligations; (p) any impairment, taking, furnishing, exchange, or release of or failure to perfect, maintain or obtain protection of any lien or security interest in, any security or other collateral securing the Guaranteed Obligations; (q) any “one-action” or “anti-deficiency” law or other law which may prevent RCPA from otherwise bringing an action against Guarantor; (r) any defenses based upon suretyship available to Guarantor; (s) any surrender, exchange, acceptance, settlement, compromise or release by RCPA of any party (including, but not limited to Member or Guarantor), or any other guaranty or any security held by it for any of the Guaranteed Obligations; (t) by any irregularity, unenforceability or invalidity of any of the Guaranteed Obligations or any part thereof or any security or other guaranty thereof; (u) any defense based upon RCPA's failure to comply with the notice requirements under Article 9 of the Uniform Commercial Code as in effect from time to time; (v) any statute of limitations; (w) any change in the laws, rules, or regulations of any jurisdiction; or (x) any other circumstance (other than payment or performance) that might otherwise constitute a legal or equitable discharge or defense of Guarantor generally.
Representations and Warranties. Guarantor represents and warrants to RCPA on the date hereof and during the duration of this Guaranty that: (a) Guarantor has the authority to enter into this Guaranty and to guarantee payment of the Guaranteed Obligations; (b) this Guaranty will not cause Guarantor to violate any agreement or order binding on Guarantor or on or against Guarantor’s property or assets; (c) Guarantor has agreed to guarantee payment of the Guaranteed Obligations at Member’s request, rather than RCPA’s request; (d) Guarantor has or will receive, or continue to receive, adequate consideration for agreeing to this Guaranty; and (e) this Guaranty is a legal, valid, binding obligation of Guarantor.
Financial Statements. Guarantor shall provide RCPA with financial statements (including, if requested, financial statements certified by an independent certified public accountant) and other financial information, as RCPA may request from time to time.
Subrogation. Until such time as all Guaranteed Obligations are paid in full and any commitments of RCPA to extend further credit to Member have been terminated, Guarantor unconditionally waives any rights that Guarantor may now have or hereafter acquire against Member that arise from the existence, payment, performance, or enforcement of Guarantor’s obligations under or in respect of this Guaranty or any other agreement in connection therewith, including without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification. Any amount paid to Guarantor in violation of the preceding sentence, shall be received and held in trust for the benefit of RCPA, shall be segregated from the other property and funds of Guarantor, and shall be paid or delivered to RCPA in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, or to be held as collateral for any Guaranteed Obligations or other amounts payable under this Guaranty.
Subordination. Guarantor agrees that following the occurrence and during the continuation of any default or event of default by Member pursuant to any document evidencing any Guaranteed Obligation, and until such time as all Guaranteed Obligations are paid in full and any commitments of RCPA to extend further credit to Member have been terminated: (a) any and all present and future indebtedness of Member owing to Guarantor shall be postponed in favor of and subordinated to the payment in full of the Guaranteed Obligations, and (b) no payment of any kind whatsoever shall be made with respect to such indebtedness until the Guaranteed Obligations have been paid in full, and any payment received by Guarantor in respect of such indebtedness shall be held by Guarantor as trustee for RCPA and promptly paid over to RCPA on account of the Guaranteed Obligations but without reducing or affecting in any manner the liability of Guarantor under the other provisions of this Guaranty. Upon request of RCPA, any notes or other instruments now or hereafter evidencing such indebtedness of Member to Guarantor, and any security therefor, shall be marked with a legend that the same are subject to this Guaranty or shall be delivered to RCPA for safekeeping.
Indemnity. Guarantor agrees to indemnify RCPA, each legal entity, if any, who controls, is controlled by or is under common control with RCPA and each of their respective directors, officers and employees (the “Indemnified Parties”), and to defend and hold each Indemnified Party harmless from and against, any and all claims, damages, losses, liabilities and expenses (including all fees and charges of legal counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party by any person, entity or governmental authority (including any person or entity claiming derivatively on behalf of Guarantor), in connection with or arising out of or relating to the matters referred to in this Guaranty, whether (a) arising from or incurred in connection with any breach of a representation, warranty or covenant by Guarantor, or (b) arising out of or resulting from any pending or threatened suit, action, claim, proceeding or governmental investigation, before any court or governmental authority; provided, however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party's gross negligence or willful misconduct. The indemnity agreement contained in this paragraph shall survive the termination of this Guaranty and assignment of any rights hereunder. Guarantor may participate at its expense in the defense of any such claim.
Credit Reports. By signing below, each Guarantor provides written authorization to RCPA or its designee (and any assignee or potential assignee) to periodically obtain credit reports (including consumer credit reports) on such Guarantor and to share such reports with RCPA’s affiliates. Such authorization shall extend to obtaining a credit profile in considering this Guaranty and subsequently for the purposes of update, renewal or extension of any Guaranteed Obligations, for any potential additional credit, and for reviewing or collecting the resulting account.
Miscellaneous.
Entire Agreement. This Guaranty contains the entire agreement of the parties hereto with respect to the subject matter hereof. Any representation, promise, condition or understanding in connection therewith which is not expressed in this Guaranty shall not be binding upon Guarantor or RCPA.
Application of Payments. Any amounts received by RCPA from any source on account of the Guaranteed Obligations may be applied by RCPA toward the payment of such of the Guaranteed Obligations, and in such order of application, as RCPA may from time to time elect.
Notices. All notices to Guarantor shall be sent to the Guarantor’s address listed on the first page of this Guaranty, or such other address as Guarantor may from time to time specify in writing to RCPA. All notices to RCPA shall be sent to the following address Route Consultant Purchasing Alliance, Inc., 5511 Virginia Way, Suite 400, Brentwood, TN 37027 or such other address as RCPA may specify to Guarantor in writing. Any notice or other communication to be provided to a party pursuant to this Guaranty shall be in writing and shall be personally delivered or deposited in the United States mail, first class, registered or certified mail, postage prepaid or by a nationally-recognized overnight delivery service, or by another method mutually agreed to by RCPA and Guarantor. All such notices shall be deemed given, in the case of notice by courier service, upon delivery, in the case of appropriate mail, three business days following deposit with the U.S. Postal Service, and by another method, upon actual receipt thereof.
Governing Law, Venue and Jurisdiction. This Guaranty shall be governed by and construed exclusively in accordance with the laws of the State of Tennessee, without regards to any applicable principles of conflicts of law. Any lawsuit, action or proceeding arising out of or in connection with this Guaranty shall be instituted exclusively in any court sitting in Tennessee, (the “Acceptable Forums”). Each party signing this Guaranty agrees that the Acceptable Forums are convenient, and irrevocably submits to the jurisdiction of the Acceptable Forums and waives any and all objections to inconvenience of the jurisdiction or venue. Should a proceeding be initiated in any other forum, the parties waive any right to oppose any motion or application made by either party to transfer such proceeding to an Acceptable Forum.
Severability. Wherever possible, each provision of this Guaranty shall be interpreted in such manner to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, the remaining provisions of this Guaranty shall remain in full force and effect.
Successors and Assigns. All guaranties and agreements contained in this Guaranty shall bind the legal representatives, heirs, successors and assigns of Guarantor; provided, however, that Guarantor may not assign this Guaranty in whole or in part without RCPA's prior written consent and RCPA at any time may assign this Guaranty in whole or in part.
Rights and Remedies. No delays on the part of RCPA in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any power or right hereunder or the failure to exercise same in any instance preclude other or further exercise of any other power or right, nor shall RCPA be liable for exercising or failing to exercise any such power or right. Subject to the Arbitration clause in this Guaranty, the rights, powers, remedies, and privileges provided in this Guaranty are cumulative and not exclusive of any rights, powers, remedies, and privileges provided by any prior guaranty, any other agreement, or by law.
Modification. No modification, amendment, or waiver of, or consent to any departure by Guarantor from, any provision of this Guaranty will be effective unless made in a writing signed by RCPA, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Notwithstanding the foregoing, RCPA may modify this Guaranty for the purposes of completing missing content or correcting erroneous content, without the need for a written amendment, provided that RCPA shall send a copy of any such modification to Guarantor (which notice may be given by e-mail).
No Right to Further Notices. No notice to or demand on Guarantor will entitle Guarantor to any other or further notice or demand in the same, similar or other circumstance.
Severability. If for any reason any court of competent jurisdiction finds any provisions of this Guaranty to be void or voidable, the parties agree that the court may reform such provision(s) to render the provision(s) enforceable ensuring that the restrictions and prohibitions contained in this Guaranty shall be effective to the fullest extent allowed under applicable law.
Opportunity for Attorney Review. Guarantor represents that it has carefully read this Guaranty and has, or had a reasonable opportunity to, consult with its attorney. Guarantor understands the contents of this Guaranty, and signs this Guaranty as its free act and deed.
Facsimile Acceptance. This Guaranty may be executed in any number of counterparts. Each such counterpart shall be deemed an original, but all such counterparts shall together constitute one and the same agreement. The delivery of copies of this Guaranty and of signature pages by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by e-mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, or by combination of such means, shall constitute effective execution and delivery of this Guaranty and may be used in lieu of the original Guaranty for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes.
Consent to Electronic Communication. Guarantor agrees that RCPA can provide all information and disclosures required by law to Member, any authorized representatives, and any Guarantor electronically, and that any Guarantor’s electronic signatures on this Guaranty and related documents have the same effect as if the Guarantor signed them in ink. Guarantor’s consent to electronic communications and disclosures applies to acceptance of this Guaranty, to all future communications with Member, any authorized representative or Guarantor at any time, and to other communications, notices and disclosures that we provide to Member, any authorized representative or any Guarantor electronically, including (but not limited to) by email. All communications provided electronically will be deemed to be “in writing.”
Jury Trial Waiver. RCPA and each Guarantor waive trial by jury in any court in any suit, action, or proceeding on any matter arising in connection with or in any way related to this Guaranty or the enforcement thereof. RCPA and each Guarantor acknowledge that each makes this waiver knowingly, willingly and voluntarily and without duress, and only after extensive consideration of the ramifications of this waiver with their attorneys.
Class Action Waiver. RCPA and each Guarantor acknowledge and agree that the amount at issue in this Guaranty and any disputes that arise between them are large enough to justify dispute resolution on an individual basis. RCPA and each Guarantor waive any right to assert any claims against any other party as a representative or member in any class or representative action, except where such waiver is prohibited by law or deemed by a court of law to be against public policy. To the extent any party is permitted by law or court of law to proceed with a class or representative action against the other, RCPA and each Guarantor agree that: (1) the prevailing party shall be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (not withstanding any other provisions in this Guaranty); and (2) the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
USA Patriot Act Information Disclosure. To help the government fight the funding of terrorism and money-laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents.
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RCPA Participation Dividends Program
Terms and Conditions of Participation
Program participation is not available to customers enrolled after September 1, 2023.
“Carrier” or “you” means any business that is an active member of RCPA and qualifying participant in the Program.
RCPA may add, modify, or delete Program terms or conditions with or without notice to Carrier.
The operation of the Program is subject always to the discretion of RCPA. The Program may be suspended or terminated at any time if it becomes necessary to do so. If this happens, notice will be given to all participating Carriers as soon as is reasonably practicable.
Carrier is responsible for reporting and paying all applicable taxes in their jurisdiction of residence (federal, state, and local). Carrier may be required to provide certain information to facilitate receipt of the Annual Dividend, including completing and submitting any tax or other forms necessary for compliance with applicable withholding and reporting requirements. RCPA reserves the rights to withhold a portion of the Annual Dividend amount to comply with the tax laws of the United States or other jurisdictions.
RCPA is not acting as an agent for Carrier and is not responsible for any acts or omissions by Carrier or those of Carrier’s agents.
All documents sent by post or electronic means are sent at Carrier’s risk and RCPA will not be liable for any failure to receive any document.
The Program and/or participation redemption is void where prohibited by law.
RCPA has the sole discretion to interpret all Program rules.
Governing Law
The Program will be governed by Tennessee law, without regard to conflicts of law principles. Venue with respect to any disputes arising hereunder shall be had in the state and federal courts of the State of Tennessee.
Data Protection
By becoming a participant in the Program, Carrier agrees that RCPA may keep personal details which Carrier or others give it, and any information that RCPA knows from administering Carrier’s account on a database. RCPA may use such information to carry out the services described in these Conditions.
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Terms and Conditions of Participation
Program participation is not available to customers enrolled after September 1, 2023.
“Carrier” or “you” means any business that is an active member of RCPA and qualifying participant in the Program.
RCPA may add, modify, or delete Program terms or conditions with or without notice to Carrier.
The operation of the Program is subject always to the discretion of RCPA. The Program may be suspended or terminated at any time if it becomes necessary to do so. If this happens, notice will be given to all participating Carriers as soon as is reasonably practicable.
Carrier is responsible for reporting and paying all applicable taxes in their jurisdiction of residence (federal, state, and local). Carrier may be required to provide certain information to facilitate receipt of the Annual Dividend, including completing and submitting any tax or other forms necessary for compliance with applicable withholding and reporting requirements. RCPA reserves the rights to withhold a portion of the Annual Dividend amount to comply with the tax laws of the United States or other jurisdictions.
RCPA is not acting as an agent for Carrier and is not responsible for any acts or omissions by Carrier or those of Carrier’s agents.
All documents sent by post or electronic means are sent at Carrier’s risk and RCPA will not be liable for any failure to receive any document.
The Program and/or participation redemption is void where prohibited by law.
RCPA has the sole discretion to interpret all Program rules.
Governing Law
The Program will be governed by Tennessee law, without regard to conflicts of law principles. Venue with respect to any disputes arising hereunder shall be had in the state and federal courts of the State of Tennessee.
Data Protection
By becoming a participant in the Program, Carrier agrees that RCPA may keep personal details which Carrier or others give it, and any information that RCPA knows from administering Carrier’s account on a database. RCPA may use such information to carry out the services described in these Conditions.