Sample Factor Brokerage Agreement Jul 22, 2008 4:17:25 GMT 4
Post by Sapphire Capital on Jul 22, 2008 4:17:25 GMT 4
THIS AGREEMENT made this day of_____ _________________, 20____ by
and between First Capital Funding Corporation, 3175 Starbright Court, Suite D. Middleburg, FL 32068
(The Factor), and
WHEREAS, the Factor is in the business of factoring accounts receivable and desires to
engage the Broker to identify and procure accounts receivable for the Factor's business of factoring;
WHEREAS, the Factor desires to engage the Broker on a non-exclusive basis for the
purposes herein set forth and in accordance with the terms and conditions hereof; and
WHEREAS, the Broker is in the business of identifying and procuring persons and entities
having accounts receivable for the purposes of factoring; and
WHEREAS, the parties each acknowledge to one another that the Broker shall not, for all
purposes herein or pursuant hereto, be considered as an employee of the Factor, but rather, is and
shall remain an independent contractor:
NOW, THEREFORE, the parties agree as follows:
Purpose. The Factor engages the Broker to solicit and procure for the Factor
commercial or medical clients who desire to finance their accounts receivable through factoring and
hereby appoints the Broker as the Factor's agent therefore.
Acceptance and Duties. The Broker accepts engagement and appointment by the
Factor to serve as a broker for purposes of identifying and acquiring commercial clients who have
accounts receivable for which they seek factoring to be provided by the Factor. In connection
herewith, the Factor acknowledges that the Broker acts as such for other persons and entities similarly
situated as the Factor, and therefore, this Agreement shall not be exclusive to either one of the parties
nor shall the Broker be prevented from performing the same or similar services for others.
Term. This Agreement shall continue in full force and effect for a term of one (1) year
from the date hereof and for successive periods of one (1) year thereafter unless terminated by either
party by written notice sent by certified mail at least four (4) weeks prior to the expiration of any yearly
For the services to be performed by the Broker hereunder, the Broker
shall be entitled to commissions at a rate of 5% percent of the "gross profit" earned
by the Factor which gross profit shall be measured by the difference between the total
dollar amount factored and the net dollar amount remitted to the client on each
The above commissions shall apply and therefore be paid upon all clients and
customer accounts introduced to Factor by Broker, directly or indirectly, during the
term of this Agreement, or "life of the account," whichever is the greater, and for a
period of one (1) year thereafter. The "life of the account" shall be deemed to mean
the period of time commencing with the date the account is first introduced to the
Factor by the Broker (orally or in writing) and ending on the date the last intended
factoring transaction by the Factor with that client has been concluded and all funds
distributed, notwithstanding the Factor may do business with the client thereafter, in
which case, if done within one (1) year after the life of the account, a new life of the
account shall be deemed to commence and the account shall then be subject to all of
the provisions of this Agreement, including the requirement for payment of
commissions to the Broker.
All commission shall be paid not later than the 15th day after full collection in
which the transaction giving rise to the commission occurs without demand, set-off or
Territory and Exclusivity. The Broker shall have no exclusive territory and may offer
and procure factoring services for and on behalf of the Factor or any other factor in any state, territory or
possession. The right to effectuate factoring sales for and on behalf of the Factor shall be on a non-
Broker's Services. Broker agrees in connection with the solicitation of prospective
commercial clients for Factor, to provide Factor with such documents and information as shall be
reasonably necessary for the Factor to evaluate whether or not acceptance of the client and the
accounts receivable shall be had and made. In connection herewith, the Factor shall provide the Broker
with such terms, conditions and instructions as shall be applicable from time to time, and required by
Factor in connection with the factoring of accounts receivable. The Broker shall have the right to rely
upon such information without further act or requirement. It is acknowledged between the parties that
the foregoing provision is necessary in order to protect the Broker in the event the Factor shall reject
any account or client without cause; provided, however, the client and the accounts receivable comply
with the then published terms, conditions and criteria required by the Factor, if any, and which have
been received by the Broker prior thereto.
Representations by Broker: Maintenance of Offices.
The Broker acknowledges that they are free to pursue their individual
occupation and, accept as otherwise limited by this Agreement, shall report the results
of their work, but not the means by which they were accomplished, and perform their
work herein according to their own methods and schedule, and without being subject
to the control of the Factor.
The Broker shall file and pay all social security and income taxes as an
independent contractor and shall not be entitled to any benefits of any kind as would
an employe of the Factor, nor shall Broker be entitled to any pension, stock, bonus,
profit-sharing, health or similar benefit which are, or may from time to time be made
available to the Factor's employees.
The Broker shall be solely responsible for providing a workplace for the hiring
of any other persons necessary in order to accomplish the Broker's duties and
obligations hereunder, and to pay such other persons for such services, to provide
such means and abilities to accomplish the duties and obligations of the Broker
required hereby (except to the extent the Factor shall provide the Broker with
promotional or sales literature or agreements), and to do such other things, and all
things, necessary of a person who operates an independent business and shall be
solely responsible for any and all costs thereof.
Indemnification. Factor shall at all times indemnify and hold harmless Broker and any
and all of its agents, licenses or assigns and the directors, officers, employees and agents of each of
the foregoing from and against any and all claims, liabilities, costs and expenses, including reasonable
attorney's fees, arising out of, or pursuant to, the solicitation and procurement for the Factor of
commercial clients as provided for or otherwise contemplated by the terms of this Agreement. The
foregoing indemnification shall include, but is not limited to, the acts, practices or omissions of the
Factor, its agents, servants, affiliates and employees.
Performance. Broker shall determine, within Broker's sole discretion, the method,
details and means of performing the services to be provided to the Factor hereunder. Broker may, at
Broker's expense, employ such assistants as Broker deems necessary to perform the services and the
Factor shall have no control, direct or indirect, supervisory or otherwise, over the Broker or Broker's
assistant or employees.
Assignment. Neither this Agreement nor any of the duties and obligations hereunder
shall be assigned by the Factor without the express written approval and consent of the Broker.
(a) During the term of this Agreement and for a period of one (1) year from and after
the termination hereof for any reason, or from the date the lifetime of any account
procured by Broker and accepted by Factor shall terminate as hereinbefore provided,
whichever shall be greater, neither the Factor, nor any of its officers, directors,
shareholders, partners, affiliates or agents (all or any one of which shall include any
members of the immediate families of the foregoing) shall in any way engage in any
enterprise, solicit, or directly or indirectly assist any individual, association, partnership,
or corporation in any business which solicits or seeks to solicit accounts receivable for
factoring, or for any similar financing purposes, of any client or the account of any client
introduced and/or referred or otherwise produced by the Broker to the Factor pursuant
to, and/or during the term of this Agreement.
(b) During the term of this Agreement, neither the Factor nor any of its officers,
directors, shareholders, partners, affiliates or agents, nor any members of the
immediate families of the foregoing, shall contact, do business with, or otherwise solicit
any client or the account of any client introduced to or otherwise referred by the Broker
to the Factor for the purpose of circumventing, or the result of which shall be to
circumvent or otherwise seek to prevent, the Broker from realizing or recognizing a
commission as contemplated by this Agreement.
Arbitration. Any controversy or claim arising out of or relating to this Agreement shall
be settled by arbitration in accordance with the rules of the American Arbitration Association, which
arbitration proceedings shall be held and conducted in Orange Park, Florida or the nearest city thereto
whereas the American Arbitration Association conducts hearings or otherwise has offices for such
purposes. Any judgment upon the award rendered in such arbitration may be entered in any court c
competent jurisdiction. Nothing herein shall be construed to limit the Factor from commencing an action
for the purpose of obtaining injunctive or other equitable relief, where available, for any breach of any
restrictive covenant imposed upon the Factor pursuant to this Agreement.
(a) In the event of breach of threatened breach of any of the terms, covenants and
conditions of this Agreement by the Factor, the Broker may avail himself of, any and all
remedies either at law or in equity, including, but not limited to obtaining injunctive
(b) Failure by the Broker to insist upon strict compliance with any of the terms,
covenants or conditions hereof, shall not be deemed a waiver of such term, covenant or
condition, nor shall any waiver or relinquishment of any right or power hereunder, at
any one time or more time be deemed a waiver or relinquishment of such rights or
power at any other time or times.
(c) This Agreement shall be governed by and construed under the laws of the State of
Florida and venue for any dispute in reference hereto shall be submitted to the courts in
Clay County, Florida.
(d) This Agreement is the entire Agreement between the parties and the same shall not
be altered or modified in any way whatsoever, except by a written instrument executed
by all parties with the same formalities as this Agreement.
(e) It is acknowledged between the parties that each has had an instrumental part in the
preparation of this Agreement and any ambiguity that may arise respecting any
particular term, covenant or provision hereof shall be construed equally as against the
(f) In the event any dispute arising out of or under the terms of this Agreement, the
prevailing party shall be entitled to reimbursement for all costs incurred, including
appellate proceedings, which costs shall include reasonable attorney's fees.
IN WITNESS WHEREOF, the parties have hereunto placed their hands and seals or cause
these presence to be duly executed by their proper corporate offices the date and year first above
First Capital Funding Corporation