Last Updated: May 30, 2024

This Personal Guaranty (“Guaranty”) is entered into between you, an individual (the “Guarantor”), in favor and for the benefit of SMARTTRUCKER, LLC, a Delaware limited liability company (the “Purchaser”), as of the date of the Guarantor’s acceptance of this Guaranty, for obligations related to the Non-Credit Recourse True Sale Factoring and Security Agreement (as amended, supplemented or otherwise modified from time to time, the “Factoring Agreement”) between the Purchaser and       (the “Seller”).  Capitalized terms used and not otherwise defined in this Guaranty have the meanings ascribed to them in the Factoring Agreement.  In addition to the terms and conditions set forth herein, this Guaranty is governed by the Terms of Service and Privacy Policy, which are incorporated into and made part of this Guaranty.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU HEREBY AGREE TO THE TERMS OF THIS AGREEMENT. 

ARBITRATION NOTICE: You agree that disputes arising under this Guaranty will be resolved by binding, individual arbitration, and BY ACCEPTING THIS GUARANTY, YOU ARE WAIVING THE RIGHT TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. THE TERMS OF ARBITRATION AND THE CLASS ACTION WAIVER APPEAR IN SECTION 11 AND 12 OF THIS GUARANTY, RESPECTIVELY.

1. Guaranty.

‍In consideration of the substantial direct and indirect benefits derived by the Guarantor from Purchaser’s purchases of Receivables from the Seller under the Factoring Agreement, and the requirement of this Guaranty as additional consideration to Purchaser authorizing Seller to obtain the rights and benefits under the Factoring Agreement, the Guarantor absolutely, unconditionally, and irrevocably guarantees, as primary obligor and not merely as surety, the prompt payment in full on demand by the Purchaser of all of the payment obligations (including all of its payment, repurchase, indemnity, damages for breach and similar obligations), under the Factoring Agreement and agrees to pay any and all reasonable costs, fees, and expenses incurred by the Purchaser in any way related to the enforcement or protection of the Purchaser’s rights hereunder (collectively, the “Obligations”).  For the avoidance of doubt, the terms of this Guaranty are not intended to obligate the Guarantor to guarantee payment of any Purchased Receivable, or other loss suffered by Purchaser under the Factoring Agreement, to the extent that the applicable Account Debtors failure to pay such Receivable results solely from an event that does not require Seller to assume any obligation, such as an Insolvency Event of the applicable Account Debtor or the Account Debtor’s financial inability to pay, due to the intent of the Seller and Purchaser to have entered into a true sale arrangement (“Limited Recourse”). Anything contained in this Guaranty that expressly or impliedly contradicts the intent of the parties to fully enforce the Limited Recourse intent shall be overridden and construed accordingly.

2. Guaranty of Payment Absolute and Unconditional; Waivers. 

The Guarantor guarantees that the Obligations will be paid strictly in accordance with the terms of the Factoring Agreement, regardless of any law, regulation, or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Purchaser with respect thereto. The obligations of the Guarantor under this Guaranty are independent of the Obligations, and a separate action or actions may be brought and prosecuted against the Seller or any other guarantors, or the Seller or any other guarantor may be joined in any such action or actions. The liability of the Guarantor under this Guaranty constitutes a primary obligation and not a contract of surety, and to the extent permitted by law, shall be irrevocable, continuing, absolute, and unconditional.

The Guarantor hereby irrevocably waives any defenses it may now or hereafter have in any way relating to any or all of the following:

2.1 Any lack of validity or enforceability of the Obligations or any agreement or instrument relating thereto.

2.2 Any change in the time, manner, or place of payment of, or in any other term of, any of the Obligations.

2.3 Promptness, diligence, notice of acceptance, and any other notice with respect to any of the Obligations and this Guaranty, and any requirement that the Purchaser exhausts any right or take any action against the Seller or any other person or entity. The Guarantor acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated herein and in the Factoring Agreement and that the waiver set forth in this Section 2.3 is knowingly made in contemplation of such benefits.

2.4 The Guarantor hereby unconditionally and irrevocably waives any right to revoke this Guaranty and acknowledges that this Guaranty is continuing in nature and applies to all presently existing and future Obligations.

2.5 Any other circumstance (including, without limitation, any statute of limitations) or manner of administering the Obligations or any existence of or reliance on any representation by the Purchaser that might vary the risk of the Guarantor or otherwise operate as a defense available to, or a legal or equitable discharge of, the Seller or any other guarantor or surety.

3. Subrogation.‍

Unless and until the Obligations have been indefeasibly repaid in full, Guarantor waives and will not exercise any rights that Guarantor may now or hereafter acquire againsst the Seller or other guarantors (if any), including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, or indemnification, whether or not such claim, remedy, or right arises in equity or under contract, statute, or common law, including, without limitation, the right to take or receive from the Seller or any other guarantor, directly or indirectly, in cash or other property, or by set-off or in any other manner, payment, or security solely on account of such claim, remedy, or right, unless and until all of the Obligations and all other amounts payable under this Guaranty shall have been indefeasibly paid in full.

4. No Release of Guarantor.‍

Purchaser may do any of the following, by action or inaction, without releasing or exonerating Guarantor from any of the Obligations under this Guaranty and without notifying Guarantor of any of the following: (i) renew, extend, rearrange, alter, impair, suspend or otherwise modify the Factoring Agreement, any of the Obligations or any of the rights or remedies of Purchaser under the Factoring Agreement; (ii) release Seller or any other guarantor from any of the Obligations; (iii) sell, release, subordinate, impair, suspend, waive or otherwise fail to obtain, perfect or realize upon (or continue the perfection of) a security interest in any Collateral for any of the Obligations, this Guaranty or any other guaranty of the Obligations; (iv) exercise Purchaser’s rights in any Collateral for any of the Obligations, this Guaranty or any other guaranty of the Obligations in any order that Purchaser may elect in its sole discretion; (v) advance additional funds to or for the benefit of Seller; (vi) foreclose on any Collateral for the Obligations, or any portion thereof (including the collateral provided under a deed of trust) or a guaranty of the Obligations, or any portion thereof, in a manner that diminishes, impairs or precludes the right of Guarantor to enjoy any rights of subrogation against Seller or any other guarantor, or to obtain reimbursement, performance, or indemnification for payment or performance under this Guaranty (in this connection, Guarantor waives any rights and defenses arising out of an election of remedies by Purchaser, even though that election of remedies, such as nonjudicial foreclosure with respect to security for an Obligation or any other guaranty, has destroyed Guarantor’s rights of subrogation and reimbursement against Seller or any other guarantor by operation of law), and in addition, (vii) Guaranty waives any defenses arising under Uniform Commercial Code Sections 1-103 and 9-601 et seq.; (viii) permit or suffer the impairment of any of the Obligations in a case under the Bankruptcy Code by or against Seller; (ix) make an election under Bankruptcy Code Section 1111(b)(2) in a case by or against Seller; (x) permit or suffer the creation of secured or unsecured credit or debt under Bankruptcy Code Section 364 in a case by or against Seller, (xi) permit or suffer the disallowance, avoidance or subordination of any of the Obligations or collateral for any of the Obligations; (xii) fail to exercise any right or remedy Purchaser may have with respect to the payment or performance of the Factoring Agreement or any of the Obligations; or (xiii) fail to obtain a guaranty, other assurance of payment, or credit enhancement from any other person.

5. No Marshaling.‍

 Purchaser has no obligation to marshal any assets in favor of Guarantor, or against or in payment of: (i) any of the Obligations, or (ii) any other obligation owed to Purchaser by Guarantor, Seller, or any other person.

6. Joint and Several Liability.‍

The Obligations under this Guaranty of the persons or entities constituting a Guarantor under this Guaranty shall at all times be joint and several.

7. Revival of Debt.‍

Notwithstanding any revocation or release of the Guarantor of Guarantor's Obligations under this Guaranty, this Guaranty and the Guarantor’s Obligations under this Guaranty shall be reinstated by any amounts that are subject to and /or paid, avoided or returned by Purchaser prior to the effectiveness of such revocation because of the application of any claims made under the United States Bankruptcy Code, any fraudulent transfer law, or any law respecting preferences or other forms of avoidance actions.

8. Representations and Warranties.

he Guarantor represents and warrants that the following are true and correct and that the Guarantor:

8.1 Is an adult individual and is sui juris.

8.2 Is not under any restraint and is not in any respect incompetent to enter into this Guaranty.

8.3 Does not, by the execution, delivery, and performance of this Guaranty, contravene or cause a default under (a) any contractual restriction binding on or affecting the Guarantor, (b) any court decree or order binding on or affecting the Guarantor, or (c) any applicable law binding on or affecting the Guarantor.

8.4 Has received and reviewed the Factoring Agreement.

9. Default.

Upon the happening of any of the following events, Purchaser may, without notice to Seller or Guarantor, declare any or all of the Obligations immediately due and payable by Guarantor under this Guaranty, and Purchaser shall be entitled to enforce the Obligations of Guarantor hereunder: (i) the occurrence of an Repurchase Event under the Factoring Agreement or a breach of this Guaranty, (ii) any action taken by Guarantor to seek revocation or termination of this Guaranty, (iii) the issuance of any writ of attachment against any of the property of Guarantor where such writ is not dismissed or discharged within twenty (20) days from the date that it was first issued, (iv) the making by Guarantor of any assignment for the benefit of creditors, or a trustee or receiver being appointed for Guarantor or for any property of Guarantor where such trustee or receiver is not dismissed or discharged within twenty (20) calendar days following such appointment, or (v) any proceeding being commenced by or against Guarantor under any bankruptcy, reorganization, adjustment of debt, insolvency, receivership, liquidation or dissolution law or statute and, in the case of such a proceeding being commenced against Guarantor, such proceeding is not dismissed within forty-five (45) days following the commencement date thereof.

10.  Miscellaneous.

The Parties further agree as follows:

10.1 Expenses.

The Guarantor shall pay to the Purchaser, on demand, the amount of all reasonable expenses, including, without limitation, attorneys’ fees, legal expenses, and brokers’ fees, which the Purchaser may incur in connection with exercise or enforcement of any the rights, remedies, or powers of the Purchaser under this Guaranty or with respect to any or all Obligations.

10.2 Non-Waivers, Amendments, Remedies.

No course of dealing by the Purchaser and no failure by the Purchaser to exercise, or delay by the Purchaser in exercising, any right, remedy, or power hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, remedy, or power of the Purchaser. No amendment, modification, or waiver of any provision of this Guaranty and no consent to any departure by the Guarantor therefrom, shall, in any event, be effective unless contained in a writing signed by the Purchaser, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. The rights, remedies, and powers of the Purchaser, not only hereunder, but also under any instruments and agreements evidencing or securing the Obligations and under applicable law, are cumulative and may be exercised by the Purchaser from time to time in such order as the Purchaser may elect.

10.3 Notices.

All demands, notices, instructions, directions and communications to a party under this Guaranty shall be in writing which may be transmitted and/or delivered electronically and shall be deemed to have been duly given if (a) sent by email to such party’s email address as follows: (i) if to Purchaser, factoring@trucksmarter.com, and (ii) if to Guarantor, as provided during the sign-up process; or (b) submitted via Purchaser’s platform.  Such email address may be modified from time to time by such party by written notice to the other party. 

10.4 Term; Binding Effect.

This Guaranty shall (a) remain in full force and effect until payment and satisfaction in full of all Obligations; (b) be binding upon the Guarantor and its successors and permitted assigns; and (c) inure to the benefit of the Purchaser and its successors and assigns.  This Guaranty shall terminate upon the payment in full of the Obligations and the termination of the Factoring Agreement.  The Guarantor may not assign or delegate Guarantor’s obligations under this Guaranty without the prior written consent of the Purchaser; which consent may be denied or delayed in Purchaser’s sole discretion, in the absence of such consent, any such purported assignment or delegation shall be void ab initio and not merely voidable.

10.5 Counterparties, Execution.

This Guaranty may be executed in any number of counterparts and by the different signatories hereto on separate counterparts, each of which, when so executed, shall be deemed an original, but all such counterparts shall constitute but one and the same instrument. This Guaranty may be executed by facsimile or electronic signature and delivered by facsimile or electronic transmission. 

10.6 Governing Law.

This Guaranty and any claim, controversy, dispute, or cause of action (whether in contract or tort or otherwise) based upon, arising out of, or relating to this Guaranty and the transactions contemplated hereby shall be governed by, and construed in accordance with, the substantive laws of the State of California.

10.7 Venue.

Any litigation, dispute, controversy, or claim including any arbitration proceeding by way of the seat of arbitration between Purchaser and Guarantor arising out of, under, or in connection with this Guaranty shall be brought and maintained exclusively in the County of San Francisco, State of California; provided, however, that nothing in this Guaranty shall be deemed or operate to preclude Purchaser from bringing suit or taking other legal action in any other jurisdiction that possesses subject matter or in-personam jurisdiction in order to protect Purchaser’s rights in the Purchased Receivables or the Collateral, as determined in the discretion of Purchaser (the “Acceptable Forums”). Guarantor hereby expressly waives any rights that Guarantor may have to object or challenge Purchaser’s election to pursue litigation, legal proceedings or arbitration in any other appropriate jurisdiction in order to protect Purchaser’s rights under this Guaranty. Guarantor hereby expressly and irrevocably consents and submits to the jurisdiction of the Acceptable Forums for the purpose of any such litigation, legal proceeding or arbitration as set forth below, and Guarantor hereby agrees that the Acceptable Forums have a reasonable relation to this Guaranty and the transactions contemplated hereby. Guarantor hereby expressly and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to in-personam jurisdiction or venue of any such litigation, legal proceeding or seat of arbitration brought in any such court in the Acceptable Forums and any claim that any such litigation has been brought in an inconvenient forum or venue. Any suit, action or proceeding initiated by Guarantor outside the Acceptable Forums or request to transfer any suit, action or proceeding from an Acceptable Forum shall constitute an independent material breach of this Guaranty for which Purchaser may immediately recover, including all attorney’s fees..

10.8 Severability.‍

If any term or other provision of this Guaranty is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Guaranty shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party.  Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Guaranty so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.

11. Alternative Dispute Resolution Mechanism.

Purchaser shall be entitled to require that any controversy, claim, or breach arising out of or relating to this Guaranty be resolved by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules R-1 -- R-54. To the extent that this Guaranty involves interstate commerce, the Federal Arbitration Act (9 U.S.C. § 1, et. seq.) shall apply and govern the interpretation and enforcement of this Guaranty. The seat of arbitration shall only be in one of the Acceptable Forums and the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, effective September 1, 2022, (as may be amended) and the Procedures for Large, Complex Commercial Disputes shall apply only if the amount in dispute, based on the Demand for Arbitration, is equal to or greater than Two Hundred and Fifty Thousand Dollars ($250,000). Purchaser shall, in its own business judgment, be entitled to obtain any provisional relief which may take the form of prejudgment remedies, including, replevin, garnishment, attachment or the like within or without the arbitration proceeding without waiving its right to arbitration. The seat of arbitration and all oral hearings for the presentation of evidence or oral argument shall be conducted in San Francisco County, California. Any arbitration proceeding shall be conducted by one (1) arbitrator who has experience in financing or a similar area of expertise such as factoring. The arbitrator shall decide the substance of all claims in accordance with the choice of law as provided in this Guaranty and honor all claims of privilege recognized by law. After demand for arbitration is made pursuant to the rules of the AAA, or applicable and governing law, barring extraordinary circumstances, for good cause, in the interests of justice, the final hearing of the arbitration proceeding shall be concluded within one hundred and twenty (120) days from the date the arbitrator is appointed. Failure to adhere to this time limit shall not constitute a basis for challenging the award. Any award shall be rendered within forty-five (45) days of the completion of the final hearing, unless, for good cause, extended by the arbitrator and upon request of any party any award shall include findings of fact and conclusion of law. The award rendered by the arbitrator shall be final and binding and judgment confirming the award may be entered in any court having jurisdiction and shall be brought exclusively in San Francisco County, California. Each party shall pay its pro-rata share of the expenses of the arbitrator. In the event that either of the parties fails to pay its pro-rata share of expenses, they shall be deemed to have defaulted, and the arbitrator may enter an award upon default against such party.  Notwithstanding anything to the contrary, Purchaser shall be entitled to institute suit in order to obtain provisional relief in the form of prejudgment remedies, including, specific performance, replevin, garnishment, attachment or the like without being held to have waived its right to either compel arbitration or general judicial reference on all remaining issues and in such event any claim that Seller may wish to assert shall remain subject to arbitration or general judicial reference as provided below.  Nothing contained in this section shall be applicable to any claims brought by Purchaser against an Account Debtor. The arbitrator shall not have the power to commit (a) errors of law or legal reasoning, (b) errors of fact, or (c) errors with regards to mixed questions of law and fact.  In addition, the arbitrator shall not reach factual conclusions unsupported by substantial evidence.  Furthermore, the arbitrator shall not have the power to render an award (a) not based on proper admissible evidence, (b) based on evidence not presented at the hearing, or (c) not in conformity with the substantive and procedural law of the State of California. In any arbitration arising out of or related to this agreement, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. If the arbitrator exceeds any of the foregoing specific powers, the award may be vacated or corrected by filing either, as may be appropriate, an application to vacate or to modify or correct the award in one of the Acceptable Forums. The parties each acknowledge that the arbitration proceeding will require the payment of fees and costs to conduct the arbitration. The parties each agree to initially divide equally all arbitration fees and the compensation of the arbitrator(s).  Notwithstanding the foregoing, the parties each further acknowledge that the arbitrator(s) may decide that one party or the other is the prevailing party in which event the non-prevailing party will be obligated to reimburse the prevailing party for all the fees and costs imposed in connection with the arbitration. In the event that one of the parties fails or refuses to timely pay any required fees assessed by or due to the American Arbitration Association and if such party fails to make any such payment within 2 business days after receipt of 5-days written notice to pay made by the non-breaching party, the non-paying party shall be deemed to be in default of this section and the non-breaching party may, but shall not be required to, treat such non-payment as an irrevocable waiver by the breaching party of its right to compel or otherwise continue in arbitration as well as any other rights that may be available for such breach including but not limited to the entry of a default and the right to an award based on the same rules that apply to defaults under the Federal Rules of Civil Procedure. If for whatever reason, this arbitration provision proves unenforceable, the parties shall, at the option of either party, be entitled to proceed pursuant to California Code of Civil Procedure sections 638 and 641 through 645.1 or any successor statute thereto.

12. Class Action Waiver.

The parties each agree that any proceeding, whether in arbitration or in court, will be conducted only on an individual basis and not in a class, consolidated or representative action. The parties agree to arbitrate solely on an individual basis, and that this Guaranty does not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding.