Ana Faktoring Sözleşmesi
PREAMBLE (Public Offer Statement)
This Master Factoring Agreement (this “Agreement”) is a legally binding public offer issued by Adapty Tech Inc. (“Adapty,” “we,” “us,” or “our”), made available at https://adapty.io/factoring-terms/, and addressed solely to customers of the Adapty Platform who have validly registered an account and been approved to use Adapty’s Payment System.
By executing an Activation Order (“AO”), or Purchase Order (PO) any such customer (“Company,” “you,” or “your”) accepts and agrees to be bound by the terms and conditions of this Agreement, as updated and published by Adapty from time to time.
The “Effective Date” of this Agreement, with respect to any Company, shall be the date on which the Company executes its first AO/PO with Adapty. All subsequent AOs and POs will be governed by the version of this Agreement effective as of their execution date, unless otherwise specified in writing.
By accessing or using the Adapty Platform and executing an AO/PO, you confirm that you are a registered and approved customer of Adapty and that you accept this Agreement in its entirety.
Definitions
For purposes of this Agreement, including any Activation Orders (“AO”) or Purchase Orders (“PO”) executed hereunder, the following terms shall have the meanings set forth below. Capitalized terms not otherwise defined herein shall have the meanings assigned to them in the relevant AO/PO.
Advance Percentage. The percentage of the Purchase Price that Adapty agrees to pay to the Company on the Purchase Date, as specified in the applicable AO or PO. Adapty may apply a lower Advance Percentage in accordance with this Agreement.
Balance Payment. The portion of the Purchase Price, if any, remaining after deducting the Advance Payment and any applicable Commission Fees, costs, or adjustments, payable to the Company upon Adapty’s collection of the Purchased Receivables.
Collections. All amounts actually received by Adapty from the applicable Marketplace(s) or the Company in respect of the Purchased Receivables, whether paid in cash, by transfer, or otherwise.
Collection Process. The agreed method for directing and receiving Collections in respect of the Purchased Receivables, as described in the applicable AO or PO.
Commission Fee. The fee earned by Adapty for purchasing Receivables under this Agreement, expressed as a flat percentage for the relevant collection period, as specified in the applicable AO or PO.
Current Receivables. Receivables that have already been generated from completed sales on the applicable Marketplace(s) as of the Purchase Date but remain unpaid to the Company.
Future Receivables. Receivables expected to be generated during the Projected Receivables Period following the Purchase Date, based on the Company’s historical sales data and agreed projections.
Future Receivables Purchase Price. The agreed face value amount of the Future Receivables being sold under the applicable PO, as specified therein.
Marketplace. Any online marketplace, app store, payment processor, or platform from which the Company derives receivables to be sold under this Agreement.
Proceeds of Purchased Receivables. All Collections received in respect of Purchased Receivables, which shall be deemed to have been the sole property of Adapty from the applicable Purchase Date.
Projected Receivables Period. The agreed period during which the Future Receivables are expected to be generated and collected, as specified in the applicable PO.
Purchase Date. The date on which Adapty advances funds to the Company in respect of the Purchased Receivables.
Purchase Price. The face value of the Purchased Receivables, less any applicable Commission Fees, discounts, or adjustments as provided in this Agreement and the applicable AO or PO.
Purchased Receivables. The Current or Future Receivables sold by the Company to Adapty under this Agreement and any related AO or PO.
Purchased Receivables Proceeds. Synonymous with Proceeds of Purchased Receivables.
1. Overview
The Company develops and distributes mobile applications, along with the products and services offered within them (collectively, the “Goods and Services”), through various app stores, platforms, and advertising networks (each referred to as a “Marketplace”).
These activities result in accounts receivable (“Accounts”) owed to the Company by the respective Marketplace, which may include app stores, payments processors, or ad networks.
Adapty operates a proprietary combination of software, hardware, documentation, and services (the “Payment System”), which enables Adapty to:
- Facilitate the purchase and settlement of payment obligations between the Company and any Marketplace; and
- Purchase from the Company a specified percentage of the Company’s future cash flows, including, without limitation, future Accounts, contractual payment rights, and other payment entitlements owed to the Company by any Marketplace (collectively, “Future Receivables”).
From time to time, the Company may sell, and Adapty may purchase, both existing Accounts and Future Receivables through the Payment System, in each case pursuant to the terms of this Agreement and the applicable Activation Order.
2. Scope
The Payment System may be utilized with any eligible Marketplace, as specified in one or more of the following:
(i) an Activation Order (“AO”), substantially in the form attached as Exhibit A, for the purchase of Accounts; or
(ii) a Purchase Order (“PO”), substantially in the form attached as Exhibit B, for the purchase of Future Receivables.
The Parties may, from time to time, enter into additional AOs or POs, each of which shall be governed by and incorporated into this Agreement, unless expressly stated otherwise in the applicable order.
For the avoidance of doubt, no more than one AO/PO may be active at any given time for a particular Marketplace.
3. Data access and system integration
3.1 Marketplace Access. The Company shall designate Adapty as an administrative or finance-level user within the Company’s Marketplace account(s), with sufficient rights to:
(a) update payment instructions, as necessary; and
(b) access, retrieve, and download all data reflecting amounts owed by the Marketplace to the Company for delivered Goods and Services (the “Electronic Earnings Data”).
3.2 Non-Interference. Once access is granted, the Company shall not delete, restrict, or otherwise modify Adapty’s access rights for as long as any AO or PO remains active. This restriction shall automatically terminate upon the final settlement and closure of the applicable AO or PO.
3.3 Authorized Use. The Company expressly consents to Adapty’s use of such access to:
(a) modify payment routing so that funds from the Marketplace are directed to Adapty’s designated bank account upon execution of any AO/PO; and
(b) access and download Electronic Earnings Data as reasonably required to perform under this Agreement.
3.4 Additional Data and Credentials. Through the Payment System, the Company shall provide:
(a) verified bank account information for receiving electronic transfers; and
(b) access credentials to applicable business intelligence, finance, analytics, or other software systems as identified in the relevant AO/PO (collectively, “BI Accounts”).
3.5 Security of Credentials. The Company shall maintain the confidentiality and security of all access credentials to the Payment System and BI Accounts.
3.6 Limitation of Liability. The Company releases Adapty from any losses, liabilities, or damages arising from unauthorized use of the Payment System or BI Accounts, provided that such access or use was granted, directly or indirectly, by the Company or any individual to whom the Company provided credentials or access. This release shall not apply to unauthorized use by Adapty, its employees, or affiliates.
4. Purchase and sale of accounts receivable
4.1 Overview of Data Uploads
Adapty shall, on a daily basis, upload to the Payment System all available Marketplace earnings data, organized by individual transactions (each, a “Transaction”) for Goods and Services delivered on or after the Effective Date (or as otherwise specified in the applicable AO). The timing of such data uploads shall correspond to the time zone designated by the relevant Marketplace. From time to time, a Marketplace may revise previously reported figures; any such revisions shall be deemed “Update Adjustments” for purposes of this Agreement.
4.2 Available Receivables; Offer to Sell and Pricing
Each day, the Transactions and any Update Adjustments reported for the preceding calendar day (or for the applicable period commencing on the Effective Date) shall, after a period of forty-eight (48) hours, be deemed to generate an invoice from the Company to the applicable Marketplace in the net amount payable to the Company, excluding any processing fees, commissions, or other amounts not owed to the Company (for example, the 30% fee retained by the Apple App Store). The resulting net amounts constitute the “Available Receivables”.
At such time, the Company shall be deemed to have offered to sell all Available Receivables to Adapty for a purchase price equal to their face value, less Adapty’s Commission Fees as specified in the applicable AO (the “Purchase Price”). By making this offer, the Company is deemed to have made all representations and warranties set forth in Section 7 with respect to the Available Receivables offered. Adapty may accept this offer as described in Section 4.3.
4.3 Purchased Receivables; Payments and Calculations
(a) Current Receivables. Adapty may accept the Company’s offer to sell Available Receivables by depositing an advance payment equal to, or less than, the Advance Percentage specified in the applicable Activation Order (AO). The Advance Percentage represents the portion of the Purchase Price to be advanced to the Company on the Purchase Date, with the remaining balance of the Purchase Price payable once Adapty collects, or is deemed to collect, the Purchased Current Receivables from the Marketplace, as further described in Section 4.5. The effective date of each purchase shall be the “Purchase Date,” as defined in the AO.
(b) Future Receivables. From time to time, the Company may offer to sell Future Receivables to Adapty, which Adapty may accept in its sole discretion. Upon acceptance, Adapty shall pay to the Company an amount equal to, or less than, the Advance Percentage specified in the applicable Purchase Order (PO), calculated against the Future Receivables Purchase Price. The Advance Percentage for Future Receivables represents the portion of the agreed Purchase Price paid to the Company on the Purchase Date, prior to actual collection of such receivables from the Marketplace. Any remaining balance of the Purchase Price (if applicable) shall be payable to the Company upon Adapty’s receipt of Collections up to the Collection Threshold specified in the PO. For the avoidance of doubt, amounts collected in respect of the Purchased Future Receivables constitute proceeds of assets owned by Adapty from the Purchase Date and these transactions are a true sale of receivables, not a loan.
(c) General Application. The Advance Percentage for both Current and Future Receivables may be adjusted by Adapty, at its sole discretion, in accordance with the applicable AO/PO. Any such adjusted value shall be deemed the operative Advance Percentage for all purposes under this Agreement, unless and until modified again by Adapty.
(d) Payment Instructions. Adapty shall deposit payments for Purchased Receivables into the Company’s verified bank account, as specified in the applicable AO or PO.
4.4 Acceptance of Credit Risk; Recourse; Repurchase Events
Buyer shall assume the credit risk associated with the non-collection of any Purchased Current Receivable solely in the event that the applicable Marketplace is unable to pay due to insolvency, bankruptcy, or other similar financial incapacity (each, a “Credit Event”). For the avoidance of doubt, any chargebacks, refunds, withholdings, set-offs, disputes, clawbacks, or adjustments imposed by the Marketplace or end-users shall not constitute a Credit Event.
If any Purchased Receivable cannot be collected in full for any reason other than a Credit Event, Buyer shall have full recourse against the Company, and the Company shall, upon Buyer’s request, promptly repurchase or refund to Buyer the outstanding Advance related to such Receivable(s). Repurchase shall be required, without limitation, in the following circumstances:
(a) the Marketplace or processor suspends, blocks, offsets or withholds payment due to Company’s breach of Marketplace terms, fraud, misconduct or misrepresentation;
(b) any Purchased Receivable is subject to clawback, chargeback, refund, set-off or similar reversal;
(c) any Receivable is determined to be ineligible, not existing, or misreported;
(d) Company diverts, misapplies or fails to remit Collections as required under this Agreement.
Upon any repurchase, Company shall repay the outstanding Advance related to such Receivable(s), and Buyer shall retain the discount fee accrued until the date of repayment as compensation for the period Company held the Advance.
4.5 Balance Payments
Following Adapty’s receipt of payments from the Marketplace for any Purchased Receivables during a given period (the “Marketplace Payment Period”), Adapty shall, within three (3) business days, remit to the Company a payment (the “Balance Payment”) equal to:
- the Purchase Price for such Purchased Receivables,
- minus any Advance Payments previously made by Adapty for the same period,
- minus, if applicable, the portion of any Purchased Future Receivables that Adapty collected during such period, and
- minus any chargebacks, refunds, or other unpaid amounts owed by the Company to Adapty.
If Adapty is unable to collect a Purchased Receivable solely due to a Credit Event, and the Company provides written notice of such Credit Event within thirty (30) days of its occurrence, such amount shall be treated as collected (unless subject to a valid chargeback, refund, or adjustment).
4.6 FX and Multi-Currency Collections
(a) All calculations and payments between the Parties shall be in U.S. dollars (USD).
(b) If Collections are received in another currency, Buyer shall convert them into USD using a rate determined by Buyer acting reasonably and in good faith (including any rate applied by the Marketplace or Buyer’s settlement bank).
(c) All related bank, processor and FX fees, spreads and charges shall be deducted from Collections before calculating any Balance Payment or Reserve release.
(d) FX risk (exchange-rate movements) is for Company’s account. Buyer’s determination of the applicable rate and related charges shall be conclusive absent manifest error.
(e) This clause concerns settlement mechanics only and does not recharacterize the sale of Purchased Receivables as a loan.
4.7 True Sale; Security Interest (Fallback)
(a) True Sale. Each transfer of Purchased Receivables to Adapty under this Agreement is intended to be, and shall be treated as, a true, final, and irrevocable sale. Upon purchase, Adapty becomes the full legal owner of the Purchased Receivables, and the Company no longer has any rights or control over them.
(b) Recharacterization. If, for any reason, a Purchased Receivable is deemed not to have been sold but to remain the property of the Company (e.g., in bankruptcy), the Parties agree that this Agreement shall automatically operate as a security agreement. In that case, the Company grants Adapty a first-priority security interest in all relevant Accounts and their proceeds to secure Adapty’s rights and any amounts owed.
(c) Future Receivables. The same rules apply to any Future Receivables sold to Adapty under a PO.
(d) Legal Compliance (UCC/PPSA). To the extent applicable, Adapty may file financing statements or take other steps under the Uniform Commercial Code (UCC) in the U.S. or the Personal Property Security Act (PPSA) in Canada to confirm and protect its rights, and Company shall cooperate with Buyer in executing and delivering any documents reasonably requested to evidence or confirm Buyer’s ownership of the Purchased Receivables.
(e) Further Assurances. The Company agrees to take, and authorizes Adapty to take, any actions needed to keep Adapty’s ownership or security interest fully perfected and first in priority for the entire term of this Agreement.
(f) No Liens. Company shall not sell, assign, pledge, grant, or permit to exist any lien, security interest or other encumbrance on any Purchased Receivable or related Collections, other than in favor of Buyer under this Agreement.
4.8 Reserve
On the date Adapty provides funding to the Company in connection with any Purchased Current Receivables, Adapty shall withhold and credit to a non-interest-bearing bookkeeping account (the “Reserve Account”) an amount equal to:
(i) the Purchase Price for such Purchased Current Receivables, minus
(ii) the Advance Payment made in respect thereof.
The balance of the Reserve Account (the “Reserve”) shall serve, among other purposes, as collateral for any Chargebacks, adjustments, outstanding debts, or other obligations the Company owes to Adapty under this Agreement.
Adapty may, at any time, set off any amounts the Company owes to Adapty (whether under this Agreement or any related agreement) against any amounts Adapty owes to the Company, including amounts held in the Reserve.
Release of Reserve. Subject to any applicable deductions, Adapty shall release the remaining balance of the Reserve to the Company within 10 business days after
(a) all related Purchased Receivables have been collected in full, and
(b) all obligations of the Company to Adapty arising under this Agreement have been satisfied.
4.9 Chargebacks & Obligations
If any Purchased Current Receivable is not paid by the Marketplace when due – for any reason other than the credit risk expressly assumed by Adapty under Section 4.4 – or if the Company breaches any representation or warranty related to such receivable, or if the Marketplace makes payment to any party other than Adapty, then Adapty may, at its sole discretion, charge back such receivable to the Company (a “Chargeback”).
Upon a Chargeback, the amount of the Chargeback shall immediately become a debt owed by the Company to Adapty and shall form part of the Obligations under this Agreement. At that point, Adapty’s assumption of credit risk under Section 4.4 for the affected receivable shall automatically terminate.
“Obligations” means all financial and non-financial obligations, liabilities, and debts that the Company owes to Adapty under this Agreement or any related agreement, including any indemnification obligations, but excluding any losses, costs, or expenses incurred by Adapty that arise solely from the credit risk Adapty has expressly agreed to bear under this Agreement.
A Chargeback shall not release or impair Adapty’s ownership or security interest in the affected receivable until the related amount has been fully repaid by the Company.
The Company shall promptly notify Adapty if it receives any notice or communication from a Marketplace indicating that the payment of Accounts may be delayed, withheld, or otherwise impacted. For example, if the Company receives an email from Apple stating that payments are on hold, the Company must immediately forward such communication to Adapty.
4.10 Process for Recovery
Adapty may, at its discretion, recover any Chargebacks or other Obligations by first debiting amounts held in the Reserve, prior to making any final Balance Payments to the Company for Purchased Current Receivables.
If the Reserve balance is insufficient to cover the full amount of any Chargebacks or Obligations, the Parties agree that Adapty may deduct such amounts from any payments otherwise due to the Company for future Purchased Current Receivables.
If, after applying the Reserve and future receivables, Adapty is still unable to recover the full amount owed, then – to the extent permitted by applicable law – Adapty may debit the Company’s designated bank accounts directly to recover any unpaid Chargebacks or other Obligations.
The Company hereby grants Adapty all rights necessary to implement these debits and agrees to execute any additional documents or authorizations reasonably required to enforce such rights.
For clarity, no Chargebacks or Obligations will arise solely from credit risk that Adapty has expressly agreed to assume under this Agreement.
4.11 Payments Received in Error
(a) If Adapty (or its designee) receives a payment from a Marketplace that does not relate to a Purchased Receivable, and such funds are fully cleared and available for use in Adapty’s account (as confirmed by its bank or payment provider), Adapty shall forward the payment to the Company within three (3) business days, provided that:
- the Company is not in default under this Agreement, and
- there are no unpaid or outstanding Obligations owed by the Company to Adapty.
(b) If the Company receives a payment from a Marketplace for a Purchased Receivable, the Company must immediately notify Adapty. Upon such notice, Adapty shall calculate the amount owed for that Marketplace Payment Period and issue an invoice to the Company. The Company shall pay the invoiced amount immediately, and Adapty must receive full payment no later than three (3) business days from the invoice date.
4.12 Indemnity Rights
The Company shall indemnify, defend, and hold harmless Adapty, its successors, assigns, directors, officers, members, agents, attorneys, and employees (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, claims, costs, and expenses (including reasonable attorneys’ fees) that arise out of or relate to:
(i) any claims by a Marketplace or other third party asserting any interest in, or rights to, the Purchased Receivables in which Adapty has acquired ownership, including claims related to the amount, quality, pricing, performance, terms, or other disputes concerning the underlying Goods or Services provided by the Company;
(ii) any breach by the Company of its representations, warranties, covenants, or obligations under this Agreement; or
(iii) any circumstance where Adapty is unable, under applicable law, to enforce or maintain a perfected ownership or security interest in any Purchased Receivable (including any bankruptcy, insolvency, or competing claims by third parties, including trustees or liquidators).
However, nothing in this Section shall require the Company to indemnify Adapty for any losses or liabilities that result solely from Adapty’s assumption of credit risk under Section 4.4. The Company’s obligations under this Section, and those of any other person responsible for the Company’s Obligations (including any guarantors), shall survive termination or expiration of this Agreement and shall form part of the Company’s overall Obligations hereunder.
4.13 Use of Proceeds
The Company agrees to use all proceeds received from both the Purchase Price and any Future Receivables Purchase Price solely for lawful business and corporate purposes. Such funds shall not be used for any personal, family, or household expenses, nor for any activity prohibited by applicable law. If applicable, specific permitted uses of the Future Receivables Purchase Price shall be described in the related Purchase Order (PO).
5. Fees & Charges
5.1 Commission Fees
Adapty shall earn and retain a Commission Fee in connection with each purchase of Receivables from the Company under this Agreement, as further detailed in the applicable Activation Orders (AOs) or Purchase Orders (POs).
The Commission Fee is part of the agreed purchase price mechanism and represents a price discount applied to the face value of the Receivables to reflect the agreed period between the Purchase Date and the expected payment date by the applicable Marketplace. It is calculated as a flat percentage of the Receivables’ face value for such period, as set forth in the relevant AO/PO.
The Commission Fee is fully earned, non-refundable, and payable upon Adapty’s purchase of the related Receivables, irrespective of whether the Receivables are ultimately collected in full. For the avoidance of doubt, the Commission Fee is not interest on a loan or other financing charge, and no part of this Agreement constitutes a loan or credit arrangement.
5.2 Expense and Cost Reimbursements
The Company shall pay or reimburse Adapty for all reasonable and properly documented costs and expenses incurred by Adapty in connection with this Agreement, including, without limitation, any fees, charges, or amounts that form part of the Company’s Obligations. These reimbursement obligations form part of the overall Obligations and shall survive the termination or expiration of this Agreement.
5.3 Financing Statements
Adapty, including its successors and assigns, is expressly authorized to prepare and file any financing statements, continuation statements, or amendments in the Company’s jurisdiction of incorporation or formation, or in any other location as required under the Uniform Commercial Code (UCC), the Personal Property Security Act (PPSA), or other applicable legislation, to evidence and perfect any liens, ownership rights, or security interests granted to Adapty under this Agreement, including any future security interests or ownership rights that Adapty may acquire in connection with Purchased Receivables.
5.4 Late Fees
Any amount payable by the Company to Adapty under this Agreement (including, without limitation, any Chargebacks, Obligations, or invoices issued under Section 4.10) that remains unpaid for more than three (3) business days after the due date shall incur a contractual late payment charge at the rate of 5.00% per month (or the maximum rate permitted by law, if lower), calculated daily from the due date until payment is received in full. Such charge is agreed by the Parties as a reasonable estimate of additional administrative costs and losses resulting from late payment, and shall not be deemed interest.
6. Timing and method of funding for purchased future receivables
Subject to the terms and conditions specified in the applicable Purchase Order (PO), Adapty may, in its sole discretion, purchase the Purchased Future Receivables on the Purchase Date stated in each validly executed PO.
Adapty reserves the right, at its sole discretion and for any reason or no reason, to decline to purchase any Future Receivables, even if a PO has been issued, provided that no funds have been advanced by Adapty under such PO.
If Adapty proceeds with the purchase, it shall fund the Advance in an amount equal to the Advance Percentage specified in the applicable PO, calculated on the Future Receivables Purchase Price, in accordance with Section 4.3(b). Funding shall be made via federal wire, ACH transfer, or any other commercially reasonable method of transferring immediately available funds, provided that the Company has properly verified and maintained its bank account information in the designated Payment System prior to the scheduled payment date.
For the avoidance of doubt, the Commission Fee applicable to such Advance shall be calculated in accordance with Section 5.1 of this Agreement.
7. Representations & Warranties
The Company makes the following representations and warranties to Adapty, as of the date of this Agreement and again as of each Purchase Date:
7.1 Corporate Authority
The Company:
(i) is duly incorporated or organized, validly existing, and in good standing under the laws of its jurisdiction of formation;
(ii) is duly qualified and authorized to conduct business in all other jurisdictions where such qualification is required and has obtained all licenses, registrations, permits, and governmental approvals necessary to legally operate in those jurisdictions; and
(iii) has full corporate power and authority to own its properties, conduct its business as currently conducted, and enter into and perform its obligations under this Agreement.
7.2 Purchased Current Receivables
As of the Purchase Date for any Purchased Current Receivable, the Company represents and warrants that:
(i) each such receivable is a valid, enforceable, and unconditional payment obligation of the applicable Marketplace, arising from a completed sale of Goods or Services in the ordinary course of business;
(ii) each such receivable is accurately reflected in the Payment System, is owed exclusively to the Company, and is free of disputes, offsets, or defenses;
(iii) the Company is the sole legal and beneficial owner of such receivable and has full right, title, and authority to sell, assign, and transfer it to Adapty; and
(iv) such receivable is not subject to any liens, pledges, security interests, or other encumbrances.
7.3 Future Receivables
As of the Purchase Date for any Future Receivable, the Company represents and warrants that:
(i) when created, such receivable will be solely and exclusively owned by the Company and freely transferable to Adapty;
(ii) such receivable will be free and clear of all liens, pledges, security interests, or other encumbrances, except for any security interest granted to Adapty under this Agreement; and
(iii) such receivable will not be subject to any dispute, offset, or defense.
7.4 Status with Marketplaces
As of the date of this Agreement and each Purchase Date, the Company represents and warrants that:
(i) it has not been subject to any fraud-related disputes or claims with any Marketplace or online platform regarding its Goods or Services;
(ii) there is no pending or ongoing payment dispute between the Company and any Marketplace;
(iii) the Company is solvent and able to pay its debts as they come due;
(iv) the Company maintains its domicile and legal residence in the jurisdiction specified in this Agreement and has not changed its jurisdiction of formation; and
(v) the Company is duly authorized to execute and deliver this Agreement and perform its obligations hereunder.
7.5 Intellectual Property
The Company further represents and warrants that:
(i) it owns or holds valid and enforceable licenses to all intellectual property necessary or material to the creation, sale, or transfer of the Purchased Receivables and Accounts;
(ii) any registered intellectual property rights required to support the receivables are valid, enforceable, and in good legal standing;
(iii) all required filings, renewals, maintenance fees, and actions to preserve such intellectual property rights are current and effective; and
(iv) all employees, contractors, or other contributors who have created or developed any such intellectual property have executed written agreements assigning all rights to the Company and agreeing to maintain confidentiality.
7.6 Compliance with Laws
The Company represents and warrants that:
(i) it is, and at all times will remain, in full compliance with all applicable federal, state, local, and international laws, regulations, and rules governing its business operations, including without limitation all tax, export control, data protection, and consumer protection laws;
(ii) it has duly filed all required tax returns and paid all taxes, fees, and governmental charges related to its business and the Purchased Receivables; and
(iii) it is not, and will not become, the subject of any sanctions, embargoes, or other restrictions imposed by the U.S. Office of Foreign Assets Control (OFAC) or any other applicable governmental authority that would impair Adapty’s ability to enforce or collect the Purchased Receivables.
8. Covenants
The Company makes the following ongoing covenants and agreements to Adapty:
8.1 Books and Records
The Company shall clearly note and maintain its internal books and records to reflect that all Purchased Receivables have been sold and assigned to Adapty.
8.2 Tax Treatment
For all federal, state, and local tax reporting purposes, the Company shall treat the Purchased Receivables as a true sale to Adapty.
8.3 Delivery of Supporting Records
Upon Adapty’s reasonable request, the Company shall promptly deliver any records, documents, or data supporting the Purchased Receivables in which Adapty has an ownership or security interest.
8.4 Notifications
The Company shall provide immediate written notice to Adapty of:
(i) any change in its legal name, corporate structure, registered or principal place of business, or other business locations;
(ii) any changes to information previously provided in this Agreement or in any related documents; and
(iii) any default, breach, or inaccuracy in any of its representations, warranties, or covenants under this Agreement.
8.5 Execution of Additional Documents
The Company shall execute and deliver any documents that Adapty may reasonably request in connection with the notifications or changes described in Section 8.4.
8.6 Restrictions on Transfers and IP Rights
The Company shall not sell, assign, transfer, or otherwise encumber its rights, licenses, or ownership interest in any Accounts or related intellectual property, nor make any change in the ownership structure of such rights, without Adapty’s prior written consent.
8.7 No Actions Reducing Receivables
The Company shall not take, or permit others to take, any action that could reasonably be expected to diminish, reduce, or delay the generation or collection of Purchased Future Receivables on any Marketplace.
8.8 Compliance with Marketplaces
The Company shall at all times comply with the terms of service, policies, and payment rules of all applicable Marketplaces (including App Store and Google Play) and shall take all commercially reasonable steps to avoid any suspension, hold, or termination of its accounts that could adversely affect the Purchased Receivables.
8.9 Additional Arrangements
From time to time, Buyer may require additional security arrangements, which may be documented in separate agreements or schedules between the Parties. Any such arrangements shall be without prejudice to the true sale of Purchased Receivables under this Agreement.
9. Attorney and agent-in-fact
9.1 Appointment of Attorney-in-Fact
The Company hereby irrevocably appoints Adapty, and any person or entity Adapty may designate, as its true and lawful agent and attorney-in-fact, with full power of substitution, at Adapty’s cost and expense, solely for the purpose of:
(i) executing, endorsing, and delivering any documents or instruments that Adapty reasonably deems necessary to collect, enforce, or otherwise protect its rights with respect to any Purchased Receivable; and
(ii) receiving and processing any payments, remittances, or funds made to Adapty in connection with the Purchased Receivables, including those with restrictive notations, conditions, or instructions imposed by the Marketplace.
9.2 Power Coupled with an Interest
This power of attorney is coupled with an interest and shall be irrevocable until this Agreement is terminated and all Obligations owed to Adapty have been fully and finally satisfied.
9.3 Limitation of Control
For clarity, this power of attorney, and any other rights granted to Adapty under this Agreement, shall not be construed as giving Adapty any control over the Company’s general business operations or property.
9.4 Data Ownership and License
As between the Parties, the Company retains all rights in its non-public data provided or made available to Adapty under this Agreement (“Company Data”). The Company grants Adapty a perpetual, worldwide, royalty-free license to use, copy, process, and analyze Company Data solely to operate the Payment System, perform this Agreement, and improve related products and services. Adapty may create, use, and own aggregated, anonymized, or de-identified data and insights derived from Company Data and the Payment System (“Derived Data”), provided that no personally identifiable information or Company-identifying information is publicly disclosed.
9.5 Personally Identifiable Information (PII) Consents
The Company represents and warrants that it has obtained all necessary consents, rights, and authorizations to:
(i) collect and use any PII for its own internal business purposes; and
(ii) share such PII with Adapty and its authorized business partners for their own internal business purposes, in compliance with all applicable privacy and data protection laws.
10. Event of Default
10.1 Event of Default
An “Event of Default” shall occur if any of the following events take place:
(a) The Company fails to pay, when due, the full amount of any Chargeback, Obligation, fee, or other amount owed to Adapty under this Agreement.
(b) Any statement, certification, representation, or warranty made by the Company, whether written or oral, in connection with this Agreement or any related document or instrument is false, misleading, or materially inaccurate when made or deemed made.
(c) The Company fails to comply with any covenant, obligation, or agreement under this Agreement or materially breaches any term or condition of this Agreement.
(d) The Company:
(i) becomes insolvent (on a balance sheet basis) or unable to pay its debts as they come due;
(ii) files for bankruptcy or reorganization, or is the subject of any voluntary or involuntary bankruptcy petition or proceeding;
(iii) makes an assignment for the benefit of creditors, or is subject to receivership, attachment, execution, or any similar creditor action; or
(iv) takes any action in furtherance of the foregoing.
(e) Material Adverse Change
Any event or condition occurs that, in Adapty’s reasonable judgment, has a material adverse effect on:
(i) the Company’s business, operations, or financial condition;
(ii) the enforceability or collectability of the Purchased Receivables; or
(iii) the Company’s ability to comply with the terms of this Agreement, including, without limitation, suspension, restriction, or termination of the Company’s accounts with any Marketplace (such as Apple App Store or Google Play).
10.2 Consequences of Default
Upon the occurrence of an Event of Default, Adapty may, in its sole discretion and without prejudice to any other rights or remedies available under law or equity, do any or all of the following (after providing written notice to the Company):
(i) suspend its own performance or funding obligations under this Agreement;
(ii) terminate this Agreement by issuing a Termination Notice in accordance with Section 11;
(iii) set off any amounts the Company owes Adapty against funds held in the Reserve;
(iv) apply any Purchase Price owed to the Company for other Purchased Current Receivables toward the unpaid Obligations;
(v) apply any Future Receivables Purchase Price owed to the Company toward the unpaid Obligations;
(vi) elect to purchase Available Receivables from the Company at a Purchase Price equal to or greater than the amount of unpaid Obligations, and credit the Company’s outstanding amounts against such Purchase Price;
(vii) exercise any other rights, remedies, or legal actions available to Adapty under applicable law or equity.
11. Term and Termination
11.1 Term
This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with this Section 11 (the “Term”). There shall be no automatic renewal; instead, the Agreement shall remain in effect on a continuous basis until terminated.
11.2 Termination by Company
The Company may terminate this Agreement by providing 30 days’ prior written notice to Adapty, provided that:
(i) there are no active AOs or POs (all have been closed and fully settled);
(ii) all Obligations owed to Adapty have been fully paid and satisfied; and
(iii) no Event of Default is ongoing.
11.3 Termination by Adapty
Adapty may terminate this Agreement:
(a) for convenience, by providing 10 days’ prior written notice to the Company; or
(b) immediately, upon written notice, if an Event of Default has occurred or if Adapty determines, in its reasonable discretion, that a Material Adverse Change (as described in Section 10.1(e)) has occurred.
11.4 Effect of Termination
Upon termination of this Agreement:
(i) all rights, title, and interests of Adapty in any Purchased Receivables (Current or Future) shall remain in full force and effect until all related Obligations have been fully satisfied;
(ii) Adapty shall continue to receive and process Marketplace payments for all Purchased Receivables until final settlement; and
(iii) any outstanding Reserve shall be reconciled and released (subject to Chargebacks or other deductions) in accordance with Section 4.7.
11.5 Termination of Marketplace Access
Following the final settlement of all AOs and POs, Adapty shall relinquish any administrative or financial access it holds to the Company’s Marketplace accounts (as described in Section 3), and the Company shall promptly update its payment instructions.
11.6 Termination Statements
Once all Obligations have been fully satisfied, Adapty shall, at the Company’s written request, deliver any UCC or PPSA termination statements or equivalent filings necessary to release any security interests granted under this Agreement.
11.7 Survival
The following provisions shall survive termination of this Agreement: Sections 4, 5, 7, 8, 9, 10, 11.4-11.6, and 12, as well as any other provisions which by their nature should survive.
12. Limitation of Liability
For the purposes of this Agreement, Adapty shall not be liable to the Company or any third party for:
(a) any interruptions in service, delays, or other losses resulting from force majeure events, including but not limited to acts of God, severe weather, natural disasters (e.g., floods, hurricanes, earthquakes), civil unrest, war, terrorism, labor disputes, governmental actions, or failures of telecommunications or internet services outside of Adapty’s reasonable control;
(b) any claims, damages, or liabilities for lost business opportunities, lost profits, lost goodwill, loss of revenue, or any indirect, consequential, incidental, special, exemplary, or punitive damages, whether arising out of or relating to this Agreement, any AO, PO, or any related transactions, even if Adapty has been advised of the possibility of such damages; and
(c) any losses, damages, claims, or expenses, except to the extent they are a direct and proximate result of Adapty’s gross negligence or willful misconduct in connection with this Agreement or any related agreement.
(d) any aggregate liability under this Agreement (whether arising in contract, tort, or otherwise) in an amount exceeding the total Commission Fees actually paid by the Company to Adapty during the twelve (12) months immediately preceding the event giving rise to the claim.
13. Miscellaneous
13.1 Taxes
All payments made by the Company to Adapty under this Agreement shall be made free and clear of any taxes, levies, duties, withholdings, or other charges of any kind (collectively, “Taxes”), except for taxes imposed on Adapty’s income by applicable law. The Company shall be solely responsible for any Taxes imposed on payments made under this Agreement and shall indemnify, defend, and hold harmless Adapty from and against any such Taxes.
13.2 Assignment
This Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respective successors and permitted assigns.
(a) The Company may not assign or transfer any of its rights or obligations under this Agreement (including under any AO or PO) without Adapty’s prior written consent.
(b) Adapty may assign or transfer any or all of its rights, interests, or obligations, including those under any AO or PO, to any affiliate, successor, or financing partner without the Company’s consent.
13.3 Confidentiality of Terms
Each Party shall treat as confidential all non-public information of the other Party disclosed in connection with this Agreement or any AO/PO (“Confidential Information”). Confidential Information excludes information that
(i) is or becomes public through no breach;
(ii) is rightfully received from a third party without duty of confidentiality;
(iii) is independently developed without use of the other Party’s Confidential Information; or
(iv) must be disclosed by law or order (with prompt notice if legally permitted).
Each Party shall use the other Party’s confidential Information solely to perform this Agreement, protect it with at least a reasonable degree of care, and ensure its personnel and advisors are bound by similar obligations. These obligations survive for three (3) years after termination.
13.4 Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. Any legal proceedings or actions arising out of or relating to this Agreement shall be brought exclusively in the state or federal courts located in New York County, New York, and each Party hereby irrevocably submits to the jurisdiction of such courts.
13.5 Entire Agreement and Amendments
This Agreement, together with all AOs, POs, and related exhibits or schedules, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, discussions, or understandings, whether written or oral. This Agreement may be amended or modified only by a written instrument (including an updated public offer version) expressly accepted by both Parties through execution of a new AO or PO.
13.6 Priority of Documents
In case of any conflict between this Agreement and any AO/PO, the terms of the AO/PO shall prevail.
13.7 Updates to Master Agreement
Adapty may update or modify the terms of this Agreement from time to time by publishing an updated version on its official website or platform. Such updates shall apply to all new AOs or POs executed after the effective date of the updated version.
For clarity, no updates or modifications to this Agreement shall affect any AO or PO already in effect at the time of such update, except where changes are required due to applicable law, regulatory requirements, or force majeure events.
13.8 Notices
All notices under this Agreement shall be in writing and delivered by email to the contacts specified in the applicable AO/PO or through the Payment System. Notices sent by email shall be deemed given on the date sent, provided no bounce-back or similar failure notice is received. Either Party may update its notice details by written notice or through the Payment System.
13.9 Counterparts; Electronic Signatures
This Agreement and any AO/PO may be executed in counterparts (including by electronic or click-through acceptance), each of which shall be deemed an original and together shall constitute one and the same instrument. Electronic signatures and records shall have the same legal effect as originals.
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