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PowerPay® Merchant Program Agreement
This Agreement sets forth the terms between Contractor, Dealer, HealthCare Professional (herein “Merchant”), and Program Administrator relating to the PowerPay® Program. Capitalized words not otherwise defined herein have the meanings set forth in Section 41 of this Agreement. By participating in the PowerPay® Program, Merchant accepts the terms of this Agreement as follows:
- PowerPay® Program.
Program Administrator is the administrator of the PowerPay® Program and, among other things, provides administrative, technical, and ministerial services to Funding Participants. Merchant agrees to participate in the PowerPay® Program in accordance with the terms of this Agreement, including the Operating Instructions, to allow Merchant’s customers to obtain Loans from a Funding Participant for purchases of eligible Offerings offered by Merchant, which Loans are funded by Funding Participants. Merchant understands that Program Administrator is committed to meeting or exceeding all regulatory requirements that are applicable to the PowerPay® Program and that Merchant plays an integral role in helping Program Administrator ensure compliance with all such requirements. Program Administrator enters into this Agreement under delegated authority in its role as Program Administrator for Funding Participants participating in the PowerPay® Program.
- Overview of the Merchant’s Obligations and Responsibilities under the PowerPay® Program.
(a) All of Merchant’s obligations and responsibilities under the PowerPay® Program are detailed in this Agreement and the Operating Instructions, which are available on Program Administrator’s website at https://www.GetPowerPay.com. These obligations and responsibilities include:
(i) ensuring all employees or agents involved with the PowerPay® Program are advised of the requirements related to offering the PowerPay® Program to Merchant’s customers and that Merchant’s employees or agents having sales and finance responsibilities have completed the orientation and training related to the PowerPay® Program adopted by Funding Participants and provided by Program Administrator;
(ii) promoting the PowerPay® Program in a legally compliant, accurate, complete, unbiased, and fair manner;
(iii) ensuring that Loan proceeds are used only in connection with eligible Offerings;
(iv) taking commercially reasonable measures to prevent fraudulent activity by an applicant, Borrower or Merchant (including any of its employees, agents or subcontractors) with respect to a Loan or Loan proceeds, including verifying the identity of each individual applying for a PowerPay® Program credit product, Account Number or Loan proceeds at the time of a sale of Offerings and ensuring that there is no discrepancy between the documents Merchant relies on to fulfill its obligation to verify the identity of such individual under Section 7(d)(iii) and such individual’s physical appearance or other application information;
(v) cooperating with Program Administrator in investigating and remediating escalations, complaints and disputes about Merchant and responding within five Business Days to any request for information, audit or review related to Merchant’s participation in the PowerPay® Program;
(vi) limiting Merchant’s discussions with each Borrower and prospective Borrower regarding the PowerPay® Program to providing such Borrower or prospective Borrower with approved materials or expressly authorized information, such as the telephone number to contact Program Administrator, acting on behalf of Funding Participants, regarding the PowerPay® Program, Program Administrator’s address and certain applicable codes or other identification numbers, and conducting such discussions in English only;
(vii) maintaining any information Merchant receives regarding each Borrower or prospective Borrower (in such capacities) or a Loan as strictly confidential;
(viii) providing to Program Administrator in a timely manner all information relating to Merchant’s participation in the PowerPay® Program and any Borrower and prospective Borrower as set forth herein and otherwise requested by Program Administrator or a Funding Participant (it being understood that Program Administrator and Funding Participants may share any such information with the sponsor referring the Merchant and the sponsor’s Affiliates);
(ix) responding within five Business Days to any inquiry from Program Administrator, and fully cooperating with Program Administrator in connection with the resolution of any dispute involving a Borrower or prospective Borrower; and
(x) with respect to any documents or forms provided to, or to be executed by, a Borrower or prospective Borrower or which constitute a disclosure required by Program Administrator or under applicable law in connection with the PowerPay® Program, only using such documents and forms provided to Merchant, or approved in writing by, Program Administrator (and only using the latest version thereof) and not modifying any such documents or forms without Program Administrator’s prior written consent.
(b) In addition to Merchant’s other obligations and responsibilities, Merchant shall not:
(i) prepare or disseminate any written materials regarding the PowerPay® Program other than those provided or approved in writing by Program Administrator acting on behalf of Funding Participants;
(ii) discuss with a prospective Borrower the likelihood of his or her approval for a Loan;
(iii) provide any misleading, confusing or incomplete information regarding the PowerPay® Program, including applicable interest rates or any terms or conditions of a Loan under the PowerPay® Program;
(iv) obtain any credit reports on prospective Borrowers or Borrowers
(v) pursuant to Section 5(b), add any fees to prices charged to Borrowers for the application for or use of a Loan;
(vi) discriminate among prospective Borrowers or Borrowers in any unlawful way;
(vii) ask for or accept any document from a Borrower that includes a statement that the home improvement project on which Merchant is working on behalf of such Borrower has been completed to such Borrower’s satisfaction in advance of the actual completion thereof; or
(viii) engage any subcontractor to work on a home improvement project funded in whole or in part by a Loan that is not properly licensed.
(c) In the event that Merchant has failed to comply with this Agreement, Program Administrator may suspend Merchant’s participation in the PowerPay® Program and take such other action as it deems appropriate, including terminating this Agreement.
- Overview of Program Administrator’s Obligations and Responsibilities under the PowerPay® Program.
Program Administrator, acting on behalf of Funding Participants, will administer the PowerPay® Program. A Funding Participant may offer Merchant’s qualified customers open-ended (revolving) or closed-ended (installment) Loans for the purpose of financing purchases of eligible Offerings offered by Merchant. Funding Participants will direct the terms and conditions under which loans are extended to Borrower(s).
Except as provided in Section 9, Program Administrator, acting on behalf of Funding Participants, may modify this Agreement by providing written or electronic notice to Merchant. Merchant’s continued participation in the PowerPay® Program for new credit applications after the effective date of any such modification will constitute Merchant’s acceptance of the modified terms and Merchant’s agreement to be bound by them. If Merchant does not want to accept such modifications, it must not submit any credit applications subsequent to such effective date and must advise Program Administrator in writing of its decision. Notwithstanding the foregoing, modifications to this Agreement that are applicable only to Merchant and not to other participants in the PowerPay® Program shall not be effective unless provided to Merchant in writing and agreed to by Merchant, either in writing or by its continued participation in the PowerPay® Program.
- Promotion of the PowerPay® Program.
(a) If Merchant chooses to participate in the PowerPay® Program, Merchant agrees to promote the PowerPay® Program in a commercially reasonable manner and in full compliance with all applicable laws and regulations. Any written material referring or relating to the PowerPay® Program, including the fact that Merchant participates in the PowerPay® Program or specific Loan credit terms or credit products Merchant accepts, shall be prepared or furnished by Program Administrator or, if prepared by Merchant, shall be subject to review and approval by Program Administrator in advance of being used by Merchant. Any such review and approval shall be limited to the review and approval of PowerPay® Program-specific representations and statements and shall not be construed as a review or approval of any advertising or solicitation materials for any other purpose or for compliance with any other provisions of any local, state or federal laws not related to the PowerPay® Program.
(b) Merchant shall not require, through a surcharge, an increase in price or otherwise, any Borrower to pay any fees as a consequence of Borrower applying for or using a Loan to pay Merchant. Specifically, Merchant may not charge Borrower any part of any charge or fee imposed by the PowerPay® Program on Merchant, provided that Merchant may treat such fees as overhead to be distributed across all customers regardless of whether the customer uses a Loan to pay for its purchase from Merchant.
(c) Merchants may choose to install a PowerPay “widget” or electronic link on their website in order to promote and help educate consumers on the benefits of PowerPay® Programs.
- Loan Terms and Approval.
(a) Through the PowerPay® Program, a Funding Participant may offer Loan(s) to Merchant’s qualified customers under a separate Loan Agreement between Funding Participant and such qualified customer after Merchant’s project has been completed or, if Merchant does not complete such project within 180 days. As between the parties, Program Administrator, at the direction and under the control of Funding Participants, (i) has sole authority to prescribe the terms and conditions of the credit application, the Loan Agreement and each Loan (including interest rate, maximum amount, and term), (ii) may prospectively modify such terms and conditions with respect to Loans for which approval is granted subsequent to the time of the modification, (iii) may at any time change the credit standards without notice to Merchant, and (iv) may reject and accept credit applications in its sole discretion. A Funding Participant shall not be obligated to take any action with respect to a Loan, including accepting the credit application or making future credit available to a Borrower or a prospective Borrower and has no obligation to approve any particular Loan or to approve Loans meeting any particular set of requirements. A Funding Participant may withdraw any previously issued Loan approval prior to the funding of the Loan, which Loan approvals unless earlier withdrawn, shall automatically expire at the end of the purchase window for the applicable credit product. Funding Participants may at any time suspend, and restart, any of the Loan products offered in connection with the PowerPay® Program.
(b) Except as otherwise provided herein, Funding Participants shall own the Loans and shall bear the credit risk for the Loans. Merchant acknowledges and agrees that it shall have no ownership interest in the Loans.
(a) Merchant agrees to submit all credit applications in accordance with this Agreement and the Operating Instructions. Merchant will use only a credit application form provided or approved by Funding Participants for use in the PowerPay® Program and will not use any other third-party financing provider’s credit application in connection with the PowerPay® Program.
(b) Merchant agrees to provide its sales and finance employees with the necessary equipment to submit credit applications to the PowerPay® Program in accordance with this Agreement and the Operating Instructions.
(c) In addition, Merchant may, with a prospective Borrower’s prior written consent, (i) submit a completed credit application to the PowerPay® Program by such means as are set forth in the Operating Instructions and (ii) receive and forward the Loan Documents to the prospective Borrower.
(d) With respect to each credit application or application information form, Merchant shall: (i) ensure all information requested on such credit application is complete and legible; (ii) obtain all signature(s) or e-signature(s), as applicable, on such credit application; (iii) verify the identity of each individual applying for credit by obtaining a government-issued photo identification document and Social Security number (or another identification method authorized in the Operating Instructions); and (iv) provide all other information requested or required by the PowerPay® Program.
(e) In the event Merchant identifies a discrepancy between the documents Merchant relies on to fulfill its obligation under Section 7(d)(iii) and the prospective Borrower’s physical appearance or other application information, Merchant shall not submit a credit application to the PowerPay® Program from any such applicant and shall promptly inform Program Administrator.
(f) In the event that Program Administrator provides Merchant with an Internet address to process credit applications, it will be an address on a commercial site on the World Wide Web portion of the Internet accessible by Merchant. As between the parties, Program Administrator shall own, manage and maintain such Internet site and retain all right, title and interest in and to such Internet site, and Merchant’s only right to such Internet site is to use it in connection with its participation in the PowerPay® Program.
(g) Merchant acknowledges and agrees that “restricted transactions,” as defined in the Unlawful Internet Gambling Enforcement Act of 2006 and Regulation GG issued thereunder, and all other transactions in the nature of gambling (“Restricted Transactions”) are prohibited from being processed through the PowerPay® Program. Merchant agrees that it will not submit Restricted Transactions for processing through the PowerPay® Program. In the event Program Administrator identifies a suspected Restricted Transaction, Program Administrator may, on behalf of Funding Participants, block or otherwise prevent or prohibit such transaction and seek any other remedies available under this Agreement or otherwise.
- Eligible Sales Transactions.
Once a loan is approved by a Funding Participant:
(a) Borrower must present a valid Account Number at the time of sale using proceeds from Borrower’s Loan. Merchant agrees to honor all valid Account Numbers when properly presented as payment for eligible Offerings. Merchant must verify the identification of each individual presenting a valid Account Number at the time of sale by obtaining a government-issued photo identification document. In the event Merchant identifies, or reasonably should identify, a discrepancy between the Borrower’s identification documents used to fulfill Merchant’s obligations under this subsection and Borrower’s physical appearance or Account Number, Merchant shall not submit a transaction to the PowerPay® Program from any such Borrower and shall promptly inform Program Administrator.
(b) Merchant must obtain a transaction authorization through the PowerPay® Program’s authorization center; provided, however, Merchant must satisfy the relevant qualifications therefor and comply with the applicable policies and procedures related thereto, as established from time to time by Program Administrator (which policies and procedures with respect to Merchant may, in the discretion of Program Administrator, include net settlement of amounts owed between Merchant and Program Administrator or Funding Participants). Program Administrator, on behalf of Funding Participants, in its sole discretion, may grant, deny or revoke any transaction authorization and may restrict or condition payment to Merchant in respect of any Borrower. If a transaction authorization is denied, the Merchant shall not complete the transaction for which authorization was sought and will contact the PowerPay® Program’s authorization center as requested.
(c) All transactions shall be evidenced by a Transaction Request. Merchant shall complete the Transaction Request in accordance with this Agreement. Merchant shall not process a transaction where the amount of the Transaction Request exceeds the account limit established by the PowerPay® Program and any other cash or other payment agreed to by the Borrower.
(d) Merchant agrees not to divide a single transaction (or project) between two or more Transaction Requests (for one or more Borrowers) or between a Transaction Request and a sales or credit slip from another credit provider; provided, however, that Merchant may divide a single transaction between a Transaction Request and a sales or credit slip from another credit provider when an approved Loan amount is insufficient to pay Borrower’s total transaction amount and Program Administrator has been provided written notice of such total transaction amount.
(e) With respect to each transaction, the Merchant agrees to:
(i) submit such transaction for authorization only after confirming that the Borrower has received and agreed to the Loan Documents;
(ii) enter legibly on the Transaction Request sufficient information to identify the Borrower and Merchant, including Merchant’s identification number, the Borrower’s Account Number and the amount and date of the transaction;
(iii) create, retain, and provide PowerPay accurate records relating to such transaction that include a description of all Offerings purchased in detail sufficient to identify the date of such transaction and the entire amount due for such transaction, including any applicable taxes (the “Invoice”);
(iv) deliver a true and completed copy of the Invoice to the Borrower at the earlier of processing such transaction or the delivery of (or performance with respect to) the Offerings;
(v) obtain the signature of the Borrower on the Invoice or other evidence of the Borrower’s authorization of such transaction and compare the signature with the signature panel of the Borrower’s government-issued photo identification document (or as otherwise permitted in the Operating Instructions) and, if the identification is uncertain, contact the PowerPay® Program authorization center for instructions; and
(vi) present the Transaction Request to Program Administrator for authorization only upon Borrower’s express written approval, and Merchant agrees that the submission of such Transaction Request shall constitute a representation by Merchant that there is a valid Invoice for such transaction that complies with the terms of this Agreement.
(f) All transactions financed pursuant to this Agreement shall be for personal, family or household purposes unless otherwise authorized in writing by Program Administrator.
(g) Offerings purchased by a Borrower that are being shipped or delivered must be shipped or delivered to a Borrower’s residence unless shipment or delivery to another location is authorized by such Borrower in writing and approved in writing by the Relevant Funding Participant, as communicated by Program Administrator.
(h) Merchant agrees that it will not offer extended product or service warranties underwritten by Merchant, an Affiliate of Merchant or any third party in conjunction with purchases made by Borrowers without the prior written approval of the Relevant Funding Participant, as communicated by Program Administrator, of any such warranty. Merchant agrees that all such extended warranties and service agreements will comply with applicable law. Merchant agrees that it will comply with all obligations under any such extended warranty or service agreement, whether underwritten by Merchant, an Affiliate or a third party.
(i) Merchant acknowledges that Program Administrator, or an Affiliate, has the exclusive right to monitor a Borrower’s Loan account and purchased Offerings.
(j) To the extent that Merchant is subject to an agreement with a manufacturer or other third party who has entered into a Merchant Program Agreement or Partner Referral Agreement with Program Administrator, Merchant acknowledges that some or all of the proceeds of all Loans may be disbursed by Program Administrator to such manufacturer or third party, who will be responsible for distributing such proceeds to Merchant.
- Customer Payments.
Merchant agrees that Program Administrator, on behalf of, and at the direction and under the control of, Funding Participants, has the sole right to receive payments on Loans. Merchant agrees not to attempt to collect a Loan unless specifically authorized in writing by the Relevant Funding Participant, as communicated by Program Administrator. Merchant agrees to hold in trust for the Relevant Funding Participant any payment received by Merchant in respect of such Loan and to deliver such payment to Program Administrator, acting on behalf of the Relevant Funding Participant, together with the Borrower’s name, Account Number, and any correspondence accompanying the payment, within five days of receipt by Merchant. Merchant agrees that Merchant shall be deemed to have endorsed, in favor of the Relevant Funding Participant to which any such payment relates, any Borrower payments by check, money order or other instrument made payable to Merchant that a Borrower presents to Program Administrator, and Merchant hereby authorizes Program Administrator, on behalf of the Relevant Funding Participant, to supply such necessary endorsements on behalf of Merchant. Merchant agrees that it shall not, directly or indirectly, make any payment on a loan on behalf of a Borrower without the prior written approval of Program Administrator, acting on behalf of Funding Participants, and Program Administrator, in its sole discretion, shall have the right to immediately (a) suspend Merchant’s right to submit new funding transactions on approved Loans or submit new credit applications or (b) terminate this Agreement in the event that Merchant fails to comply with this provision.
- Representations and Warranties.
(a) As to each credit application, Transaction Request or other material presented or delivered in connection with the PowerPay® Program, and the transaction it evidences, Merchant represents and warrants the following:
(i) that Merchant has verified the identity of the customer and that the customer was of legal age and competent to execute the credit application, Loan Agreement and transaction authorization at the time of the execution thereof;
(ii) that the credit application, Loan Agreement and Transaction Request are bona fide and were actually made and agreed to by each person identified as an applicant or Borrower;
(iii) that each Loan Agreement and Transaction Request (A) will arise out of a bona fide sale of Offerings by Merchant and the express consent of Borrower, (B) will not involve the use of the Loan for any purpose other than for the purchase of the Offerings that are the subject of the Loan Agreement and Transaction Request, which are truly and accurately described therein, are fit for their intended purpose, have been delivered into the possession of the Borrower and any services so described have been performed, and that all installation (if applicable) has been completed in a proper and workmanlike manner to the Borrower’s complete satisfaction, and (C) represents Merchant’s satisfactory performance of all of its other obligations to the Borrower in connection with the transaction evidenced by such transaction Request;
(iv) that Merchant has conveyed full and complete title to the Offerings, if any, to the Borrower;
(v) that such transaction is, in all respects, in compliance with the Operating Instructions, this Agreement, and all laws, rules and regulations of any federal, state or local governmental agency governing the same;
(vi) that Merchant has no knowledge or notice of any fact, event, issue or circumstance that would impair enforceability or collection of the Loan as against Borrower;
(vii) that there are no liens, mortgages, encumbrances or security interests upon the Transaction Request or the rights evidenced by the Transaction Request;
(viii) that there are no present or future unvested or unrecorded rights related to such transaction that could give rise to a mechanic’s, materialman’s or laborer’s lien, except to the extent those rights are in favor of Merchant, in which event Merchant agrees not to assert those rights to the detriment of any Funding Participant;
(ix) that Borrower has no claim or defense to payment of any amount reflected on such Transaction Request based upon materials or workmanship or any act or omission of Merchant or Merchant’s employees, contractors, laborers or representatives;
(x) that there have been no representations or warranties made to Borrower other than warranties approved by the Relevant Funding Participant, as communicated by Program Administrator, or a third party’s or manufacturer’s standard warranties, and in the event, a manufacturer or third-party breaches a standard warranty, Merchant will, to the extent permitted, cure such breach within 30 days of notice thereof;
(xi) that Merchant has not increased the purchase price or added any additional fees as a result of Borrower’s use of the loan to purchase the Offerings; and
(xii) that Merchant has not taken any adverse action against a prospective Borrower or Borrower because the prospective Borrower or Borrower is a member of a protected class, as defined by applicable law, or because the prospective Borrower or Borrower has chosen to use credit to finance the purchase, nor has Merchant engaged in any practice that has or could have an impermissible negative or disparate impact on members of any protected class, including steering prospective Borrowers or Borrowers to more expensive or less favorable financing options because of the prospective Borrowers’ or Borrowers’ membership in a protected class.
(b) Merchant represents and warrants that (i) Merchant is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite power and authority to carry on its business as presently conducted and is duly qualified or licensed to do business and is in good standing (where such concept is recognized under applicable law) in each jurisdiction where the nature of its business or the ownership or operation of its properties makes such qualification or licensing necessary, (ii) Merchant has all requisite power and authority to execute and deliver, and perform its obligations under, this Agreement and to consummate the transactions contemplated hereby, (iii) the execution, delivery and performance of this Agreement by Merchant and the consummation by Merchant of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Merchant and do not contravene any government or contractual restriction applicable to Merchant, and (iv) this Agreement has been duly executed and delivered by Merchant and, assuming the due authorization, execution and delivery by Program Administrator, constitutes a legal, valid and binding obligation of Merchant enforceable against Merchant in accordance with its terms.
(c) If Merchant offers products or services to any consumer located in New Jersey, Merchant represents and warrants that Merchant will comply with the New Jersey Consumer Fraud Act (N.J.S.A. 56: 8-1, et seq.), the New Jersey Contractors’ Registration Act (N.J.S.A. 56:8-136 et seq.), the New Jersey Contractor Registration Regulations (N.J.A.C. 13:45A-17.1 et seq.) and the New Jersey Home Improvement Regulations (N.J.A.C. 13:45A-16.1 et seq.). In the event Program Administrator learns that Merchant has failed to comply with this Section 11(c), Program Administrator will terminate this Agreement and may seek any other remedies available under this Agreement or otherwise.
(d) Merchant represents and warrants that it is in compliance with, and will continue to comply with, all applicable laws, rules and regulations, including those relating to privacy and data security and to its sale of Offerings, point-of-sale practices and representations made by Merchant’s employees and representatives and that Merchant has retained and will retain all required licenses, permits, approvals, certifications and the like that are required under applicable law to conduct its business, to deliver Offerings, to participate in the PowerPay® Program and to perform its obligations under this Agreement, each of which remains and shall remain in full force and effect. Merchant represents and warrants that it will comply with the Merchant Program Agreement Compliance Addendum attached hereto.
(e) Merchant represents and warrants that it will not violate any agreement it has with third parties and will advise Program Administrator promptly of any event that may adversely affect its prospects or continued operations.
(a) Without duplication of any amounts paid by Merchant pursuant to Section 24(b), Merchant agrees that it will refund on demand at the direction of the Program Administrator and under the control of Funding Participants the amount of any Loan affected, plus any finance or other charges related to the Loan under the Borrower’s Loan Agreement, in each of the following events:
(i) Program Administrator or the Relevant Funding Participant determines, that (A) Merchant has breached or failed to fulfill any of its obligations under this Agreement, including the Operating Instructions, or has breached any of its representations or warranties under this Agreement, or (B) the Invoice or Transaction Request or the transaction to which such Invoice or Transaction Request relates, credit application or sale of Offerings is fraudulent or is subject to any claim of illegality, cancellation, rescission, avoidance or offset, including negligence, fraud, or misrepresentation on the part of the Borrower Merchant, its agents, employees, representatives or franchisees;
(ii) the Borrower disputes or denies the transaction, the execution of the transaction authorization, credit application or Loan Agreement, or the delivery, quality, or performance of the Offerings purchased or any warranties thereto, or the Borrower has not authorized the transaction, or that a credit adjustment was issued by Merchant but not posted to the Loan due to Merchant’s failure to submit the credit adjustment to the PowerPay® Program; or
(iii) Borrower asserts any claim or defense against Program Administrator or the Relevant Funding Participant as a result of any act or omission of Merchant in violation of any applicable law (other than those that relate solely to the terms and conditions of such Loan).
(b) With respect to any reversal:
(i) funds not processed will be paid by Merchant in a manner as consistent as practicable with the original funds transfer. Merchant gives unconditional consent to the Program Administrator, with 3 business days’ notice, to debit the Merchant’s ACH account for the recovery of all related reversal amounts.
(ii) In its reasonable discretion but upon prior notice to Merchant, the Relevant Funding Participant, as communicated by Program Administrator, may mitigate any claim made by any Borrower if such claim may give the Relevant Funding Participant a right to a reversal in accordance with this Agreement. The Relevant Funding Participant, as communicated by Program Administrator, may settle such claim in an amount equal to the amount paid for the disputed Offerings, not to exceed the face amount of any Transaction Request.
(iii) If a Funding Participant exercises its right of reversal in accordance with this Agreement, such Funding Participant, with 3 business days’ notice to Merchant, may set off or recoup amounts against any sums due to Merchant under this Agreement and, if the amount of such reversal exceeds the sums due Merchant, such Funding Participant may demand payment from Merchant for such amount (or set off or recoup such amount up to the amount of sums due to Merchant and demand payment from Merchant for such excess amount).
(iv) If any amount, due with respect to any Loan is reversed or otherwise refunded by Merchant, Merchant shall be entitled to recover the unpaid amount of the Transaction Request from the customer as if the financing had not occurred, although Merchant shall have no rights under the Loan Agreement or to the proceeds of the Loan. In such event, Merchant shall bear all liability and risk of loss associated with such Transaction Request without warranty by, or recourse or liability to, Program Administrator or any Funding Participant.
(v) Program Administrator shall promptly notify Merchant of all requests by Borrowers for a reversal. Merchant is required to address any dispute or other circumstance described in Section 11(a) to the reasonable satisfaction of the Relevant Funding Participant and to Program Administrator, on behalf of the Relevant Funding Participant, within 15 Business Days of notice of any such reversal.
- Authorization for Automatic Direct Deposits (ACH Credits) and Direct Debits (ACH Debits).
(a) Merchant authorizes Program Administrator, on behalf of itself and Funding Participants (as applicable), to initiate credit entries for amounts that Program Administrator or Funding Participants may owe Merchant or that may otherwise be due Merchant under this Agreement.
In certain verticals such as home improvement or solar projects only, Program Administrator may offer a Merchant may with access to advance funding for home improvement construction projects that have been authorized by a Borrower. All that request advance funding are required to go through an underwriting process by Program Administrator. Program Administrator, at its own discretion, may require one or all of the following – personal or business guarantee for any of the advance funding outstanding unpaid loan balances, loan volume commitment, onsite inspection. If Merchant is granted advance funding Merchant may be permitted to take progress payments according to specific disbursement schedules, as outlined by the Program Administrator, which may change from time to time without advance notice. Advance funding fees will be determined by the Program Administrator during the underwriting process.
Any approved draw period will remain open for a term of no more than 6 months from the initial draw date (Construction Promotional Window). If the project is not complete and the signed Final Payment Authorization Certificate (PAC) has not been uploaded to the platform the draw period will be extended for up to an additional 6 months for an additional fee to be assessed monthly until the signed PAC has been uploaded to the platform. The Merchant agrees that any payment(s) will be deducted from any remaining Merchant disbursements. If after 12 months from the initial draw the project still remains incomplete and the signed completion PAC has not been uploaded into the platform the Merchant agrees to be responsible for all principal and interest payments the consumer would be obligated for under the loan Agreement until the project is complete and signed final PAC has been uploaded to the platform. The Merchant agrees that the payment(s) will be deducted from any remaining Merchant disbursements. If the reserve account is fully depleted and there are no remaining funds to be disbursed the Merchant agrees to reimburse PowerPay via wire transfer. The first request for draw requires customer approval and will not occur prior to final measurements. During the project, the Merchant and/or Customer may be asked to perform quality audits that can be in the form of recorded telephone calls, digital inspections, and/or onsite inspections. There will be no monthly prorations Merchant fees during any of these periods.
Merchant agrees to only request the first disbursement when the physical construction has begun at the project location (measurements, drawings, permitting, licensing, material ordering, scheduling. Final funding must be requested upon completion of the project and final approval by the borrower and Program Administrator. If the physical construction is started and there is any delay in the project the Merchant agrees to immediately return any portion of the advance payments the Program Administrator requests within 24 hours. Should the Merchant request any initial advance funding prior to the start of physical construction prior to 30 days from the initial advance, Merchant will be in violation of the PowerPay® Program and the Program Administrator has the right to immediately terminate the Agreement. At any time, the Program Administrator has unconditional right and authority to revoke advance funding. If for any reason the Agreement is terminated or advance funding is revoked Merchant agrees to return all advance payments within 24 hours according to a schedule and manner that is specified by the Program Administrator. Merchant authorizes Program Administrator to initiate debit entries after a minimum of 3 business days’ notice for (i) any credit entries in error or (ii) the amount which Merchant owes under this Agreement, which is more than the amount owed Merchant. Such credit and debit entries will be to the bank account identified by Merchant. Merchant and Program Administrator acknowledge that the origination of ACH transactions described in this Section 12 must comply with applicable law and NACHA rules.
(b) The authorizations set forth in Section 12(a) will remain in effect until the date on which no Loans remain outstanding. Merchant must notify Program Administrator within three Business Days of any change to the bank account for such ACH credits and ACH debits. Program Administrator agrees to comply with written notifications from Merchant that alter Merchant’s bank account information (i.e., name and address of the bank or financial institution, transit/routing number or account number), provided that Program Administrator receives such notification in a sufficient time and manner to give Program Administrator and the bank or financial institution reasonable opportunity to act on it.
(a) All data transmitted shall be in a medium, form and format designated by Program Administrator under the PowerPay® Program. Any errors in such data or in its transmission by Merchant shall be the responsibility of Merchant, and any errors in such data or in its transmission by Program Administrator shall be the responsibility of Program Administrator. Electronic transmission shall be the exclusive means utilized by Merchant for the transmission of transaction data to the PowerPay® Program except to the extent otherwise provided by Program Administrator.
(b) Merchant shall maintain paper copies (when used) or copies of electronic images of the credit applications, Transaction Requests and Invoices and other records pertaining to any Loan or transaction covered by this Agreement for such time and in such manner as Program Administrator, at the direction and under the control of Funding Participants, or any law or regulation may require, but in no event less than seven years from the date of the credit application or Transaction Request. Within 10 days, or such earlier time as may be required by Program Administrator, of receipt of Program Administrator’s request, Merchant shall provide to Program Administrator the credit application, Transaction Request, Invoice or other transaction records, including evidence of an applicant’s or Borrower’s express consent to a credit application or transaction, and any other documentary evidence available to Merchant and reasonably requested by Program Administrator (i) to meet its obligations under applicable law or otherwise to respond to questions, complaints, lawsuits, counterclaims or claims concerning Loans or requests from Borrowers or regulatory authorities, (ii) to provide any information in connection with Program Administrator’s pursuit, at the direction and under the control of Funding Participants, of bad debt tax refunds, deductions, credits, or audit offsets (including providing copies of Merchant’s state sales and use tax returns), (iii) to ensure Merchant’s compliance with this Agreement, or (iv) to enforce any rights a Funding Participant or Program Administrator may have against Merchant or a Borrower, including litigation by or against Program Administrator or such Funding Participant, collection efforts and bankruptcy proceedings.
(c) Merchant agrees to permit Program Administrator, at the direction and under the control of Funding Participants, to examine, upon reasonable notice, Merchant’s books and records concerning Merchant’s participation in the PowerPay® Program or any credit application or transaction giving rise to any Transaction Request or Loan and to provide Program Administrator, at the direction and under the control of Funding Participants, with such further information as may reasonably be required concerning Merchant’s participation in the PowerPay® Program or any credit application or transaction. Merchant authorizes Program Administrator, at the direction and under the control of Funding Participants with respect to Merchant and, to the extent permitted by law, to obtain one credit report individually on an annual basis with respect to all principals, partners or owners of Merchant, for the purpose of qualifying Merchant’s business for participation in the PowerPay® Program and for evaluating Merchant’s business for continued participation in the PowerPay® Program. Merchant agrees that it is authorizing Program Administrator to obtain one credit report annually and instructing any consumer reporting agency now and in the future for the purpose of evaluating Merchant’s business for future retention and participation in the PowerPay® Program. Merchant also agrees that, upon request, Merchant shall provide a copy of Merchant’s most recent financial statements, including Merchant’s balance sheets, statements of income and retained earnings, cash flows and any accompanying notes, in reasonable detail and prepared in accordance with generally accepted accounting principles.
(d) Merchant will provide Program Administrator with all original or electronically reproducible copies of documents required to be retained under this Agreement upon request within five Business Days, or such shorter time as required by this Agreement.
- Operating Instructions.
(a) Merchant shall satisfy all other requirements designated in any Operating Instructions or as otherwise may be required from time to time by Program Administrator, acting on behalf of Funding Participants, and communicated to Merchant. The terms of the Operating Instructions are incorporated by reference into this Agreement. In the event there is any inconsistency between any Operating Instructions and this Agreement, this Agreement shall govern.
(b) Notwithstanding the provisions regarding notice in Section 31, Merchant agrees that Program Administrator may post the Operating Instructions on the PowerPay® Program website and that doing so will constitute notice thereof to Merchant. Merchant agrees that it has an ongoing obligation to check the website on a monthly basis for any updates or changes to the Operating Instructions.
- Information Security.
(b) Merchant shall keep confidential and not disclose to any person (except to employees, officers, shareholders, members, partners, directors, managers or representatives of Merchant who are engaged in the implementation and execution of the PowerPay® Program) all information, software, systems and data that Merchant receives from Program Administrator or from any other source relating to the PowerPay® Program and matters that are subject to the terms of this Agreement and shall use, and cause to be used, such information solely for the purposes of the performance of Merchant’s obligations under the terms of this Agreement.
(c) Program Administrator will keep confidential and not disclose to any person (except Funding Participants or the employees, officers, shareholders, members, partners, directors, managers, agents or representatives of Program Administrator, its subsidiaries, Affiliates or its designees who are engaged in the implementation and execution of the PowerPay® Program) any information that Program Administrator receives from Merchant that is designated confidential by Merchant. However, nothing in this Agreement shall limit Program Administrator’s or Funding Participants’ rights to (i) report information regarding Borrowers to consumer and commercial credit reporting agencies and credit bureaus to the extent permitted by the Loan Documents and other agreements with the Borrower or by applicable law, (ii) share Borrower Information with third-party service providers in the ordinary course of business for the purposes of administering the PowerPay® Program, (iii) disclose Borrower Information or any segment thereof to actual and by customary confidentiality obligations with respect to such data, or (iv) in the event a Loan or any part thereof is sold or assigned, disclose any information reasonably necessary or required to effectuate such sale or assignment.
(d) Merchant and, on behalf of Funding Participants, Program Administrator, each agrees that it has developed, implemented and will maintain at all relevant times contemplated by this Agreement effective information security policies and procedures that include administrative, technical and physical safeguards designed to (i) ensure the security and confidentiality of Borrower Information, (ii) protect against anticipated threats or hazards to the security or integrity of Borrower Information, (iii) protect against unauthorized access or use of Borrower Information, and (iv) ensure the proper disposal of Borrower Information. All personnel handling Borrower Information shall be appropriately trained in the implementation of such information security policies and procedures. Each party shall regularly audit and review its information security policies and procedures and systems to ensure their continued effectiveness and determine whether adjustments are necessary in light of circumstances, including changes in technology, customer information systems or threats or hazards to Borrower Information.
(e) Merchant shall promptly notify Program Administrator of any unauthorized access to Borrower Information or any breach in security measures or systems for the protection of Borrower Information and take appropriate action to prevent further unauthorized access or cure such breach. Merchant shall cooperate with Program Administrator with respect to its investigation or inquiry as to any such unauthorized access or breach, provide any notices regarding such unauthorized access or breach to appropriate law enforcement agencies and government regulatory authorities, affected applicants, Borrowers and customers as Program Administrator, at the direction and under the control of the Funding Participants, in its sole discretion, deems appropriate, and pay all expenses related thereto.
(f) Merchant agrees that Program Administrator, at the direction and under the control of Funding Participants, may at any time upon notice to Merchant, review and audit Merchant’s information security policies, procedures and systems to verify their adequacy for protection of Borrower Information. Merchant will correct promptly any weakness in such policies, procedures or systems identified by Program Administrator in its reviews thereof.
- Borrower Complaints.
Within five Business Days of receipt, Merchant shall provide Program Administrator, acting on behalf of, and at the direction and under the control of, the Relevant Funding Participant for the Loan to which such complaint relates, with a copy of any written complaint or a report of any verbal complaint received from any Borrower or any third party, including any regulatory authority. Merchant agrees it will cooperate with Program Administrator, acting on behalf of, and at the direction and under the control of, the Relevant Funding Participant, in responding to complaints, which cooperation may include providing documents evidencing applicant or Borrower authorization to submit a credit application or transaction.
- Term, Suspension and Termination
This Agreement shall be effective on the date of Program Administrator’s notice of Merchant’s approval to participate in the PowerPay® Program and shall remain effective until either party gives the other party written notice of its decision to terminate this Agreement.
(a) In addition to the right of termination under this Section 17, Program Administrator, upon written notice to Merchant, may suspend Merchant’s ability submit new credit applications pursuant to this Agreement. Such suspension will be for so long as Program Administrator specifies to resolve disputes between Merchant and Program Administrator or to resolve consumer or Borrower complaints related to the PowerPay® Program.
(b) Notwithstanding termination of this Agreement, the provisions of this Agreement will continue in full force and effect as to all Transaction Requests accepted or approved by a Funding Participant under the PowerPay® Program prior to termination. In the event that Program Administrator has provided any equipment to Merchant in connection with the PowerPay® Program, Merchant agrees to return such equipment to Program Administrator upon termination of this Agreement.
(c) In the event of breach of this Agreement by either party, the non-breaching party will be entitled to exercise any and all rights and remedies as shall be available to it at law or in equity. The non-breaching party may exercise remedies concurrently or separately, and the exercise of one remedy will not be deemed either an election of such remedy or a preclusion of the right to exercise any other remedy.
- Reserve Account; Related Matters.
If (a) Program Administrator, at the direction and under the control of Funding Participants, determines that (i) Merchant’s financial condition has deteriorated or is deemed, in the sole discretion of Program Administrator, to be unacceptable, (ii) Merchant is in breach of this Agreement, (iii) the PowerPay® Program has experienced unusual levels of Borrower disputes or complaints from Borrowers or third parties, including regulatory authorities, relating to Merchant, or (iv) the number of Transaction Requests presented to the PowerPay® Program by Merchant is substantially different from historical trends, (b) Program Administrator becomes aware of some other, event or circumstance related to Merchant that causes it to believe that a reserve fund is reasonably necessary or advisable, or (c) a notice of termination has been provided by either party to the other in connection with this Agreement, then, and in each such case, (v) Merchant will pay Program Administrator, on behalf of Funding Participants, upon demand, or (vi) Program Administrator may, on behalf of Funding Participants, withhold from amounts owed Merchant in respect of any Transaction Request, or (vii) Program Administrator may, on behalf of Funding Participants debit Merchant’s bank account, an amount Program Administrator deems necessary to fund a reserve (“Reserve Account”). Program Administrator may charge to the Reserve Account any amount Merchant owes Program Administrator or Funding Participants or that is otherwise due from Merchant under this Agreement. Merchant’s obligations to Program Administrator and Funding Participants shall not be limited by the amount held in the Reserve Account. The Reserve Account does not excuse Merchant from paying any amount that Merchant would otherwise owe under this Agreement. Merchant shall not be entitled to any interest on amounts held in the Reserve Account. Program Administrator will return to Merchant any amount remaining in the Reserve Account when Program Administrator determines a Reserve Account is no longer necessary; provided, however, no refund shall be made later than one year from the termination date of this Agreement. In addition, upon the occurrence of any of the events described in clauses (a), (b) or (c) of the first sentence of this Section 19, Program Administrator may, on behalf of itself and Funding Participants, impose such limitations on Merchant’s participation in the PowerPay® Program, or take such other action, as Program Administrator deems appropriate.
- Merchant Ineligible for Loan.
Merchant acknowledges and agrees that neither it nor any of its owners, directors, officers, members, managers, representatives, employees or any member of their immediate families is eligible for a Loan.
(a) Merchant may not assign this Agreement (by operation of law or otherwise) without the prior written consent of Program Administrator, acting on behalf of, and at the direction and under the control of, Funding Participants; any purported assignment without such consent shall be void. For purposes of this Section 20(a), a transfer of a majority interest in Merchant shall be deemed an assignment. Program Administrator and Funding Participants may assign this Agreement and any of the rights or obligations hereunder at any time. In the event of such assignment, the assignee thereof shall have the same rights and remedies as any assignor under this Agreement, provided that such assignor shall not be relieved of its obligations hereunder arising prior to such assignment unless such assignment is part of an assignment of all or substantially all of its assets and the assignee assumes its obligations hereunder. Otherwise, this Agreement is binding upon the parties and their successors and assigns.
(b) Merchant acknowledges that Program Administrator will enter into agreements with Funding Participants to provide financing under the PowerPay® Program and that such persons will originate and own the Loans contemplated hereby. Each Funding Participant shall be a third party beneficiary of the obligations of Merchant hereunder and shall have the benefit of such obligations and the right to enforce (but not to the exclusion of Program Administrator for its own account) such obligations with respect to any Loan(s) with respect to which it is the Relevant Funding Participant.
During the term of this Agreement and thereafter for so long as Merchant has any obligations with respect to the PowerPay® Program, Merchant shall maintain at its expense insurance in such amount and against such risks as is customary for businesses of a comparable size in the industry in which Merchant operates. Insurance coverage shall be issued by a carrier rated “A VIII” or higher by A.M. Best or that otherwise is reasonably acceptable to Program Administrator, acting on behalf of, and at the direction and under the control of, Funding Participants, which acceptance will not be unreasonably withheld. If requested by Program Administrator or Funding Participants, Program Administrator and Funding Participants shall be named as additional insureds under each policy. If requested by Program Administrator acting on behalf of Funding Participants, Merchant shall provide Program Administrator with a certificate of insurance evidencing such insurance coverage and renewals thereof. Merchant shall notify Program Administrator if any required insurance policy is cancelled, not renewed or modified in any material respect within 15 days of any such cancellation, non-renewal or modification.
- Merger and Integration.
Except as specifically stated otherwise herein, this Agreement, together with the Operating Instructions, sets forth the entire understanding of Program Administrator and Merchant relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and the Operating Instructions. This Agreement may not be modified, amended, waived or supplemented except as provided herein. All exhibits, schedules and addendums hereto and any documents or instruments delivered pursuant to any provision hereof are expressly made a part of this Agreement as fully as though completely set forth herein.
- Merchant Obligations Unaffected.
Merchant’s obligations under this Agreement are not affected by any settlement, extension, forbearance or variation in terms that Program Administrator, at the direction and under the control of Funding Participants, may grant in connection with any Loan or by the release of the obligations of any Borrower by a court or by operation of law.
- Indemnification; Related Matters.
(a) Merchant shall indemnify, defend (at Merchant’s sole expense and with counsel reasonably acceptable to Program Administrator acting on behalf of, and at the direction and under the control of, Funding Participants), and hold harmless Program Administrator and any Funding Participant that funds or owns a Loan (or the economic rights thereto) to a customer of Merchant (and their respective officers, directors, shareholders, members, partners, managers, employees, representatives and agents) (each a “PowerPay® Program Indemnified Person”) from and against any and all losses, claims, investigations, litigation, proceedings, liabilities, damages, administrative charges and expenses (including attorneys’ fees) of any kind whatsoever (collectively a “Loss”) directly or indirectly arising out of or related to Merchant’s breach of any obligation owed to Program Administrator or any third party, including:
(i) breach of any representation, warranty or covenant of Merchant contained in this Agreement, including the Merchant Program Agreement Compliance Addendum attached hereto;
(ii) failure of Merchant to comply with any applicable federal, state or local law, rule, regulation or ordinance;
(iii) any Loss sustained by or threatened against any PowerPay® Program Indemnified Person attributable in whole or in part to negligence, fraud, error, omission or proven misconduct of Merchant, its employees, subcontractors, representatives or agents;
(iv) any Loss sustained by or threatened against any PowerPay® Program Indemnified Person by reason of, or attributable in whole or in part to, Merchant’s failure to perform any of its obligations, or discharge any of its responsibilities, to any person;
(v) any defect in any Offerings sold or provided by Merchant or any proven breach of any express or implied warranty in connection with such Offerings; and
(vi) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; provided that Merchant shall have no obligations or liability under this Section 45(a) to the extent a Loss results solely from the gross negligence or willful misconduct of a PowerPay® Program Indemnified Person. Merchant further agrees to reimburse each PowerPay® Program Indemnified Person upon demand for all legal and other expenses (including expenses related to investigation, settlement, compromise or satisfaction) incurred by any such PowerPay® Program Indemnified Person in connection with any of the foregoing.
(b) Merchant agrees that if it breaches any representation or warranty herein or if a Borrower asserts any claim or defense (regardless of the validity thereof) arising out of any transaction evidenced by any credit application, Loan Agreement or Transaction Request or cancels any transaction evidenced by any credit application, Loan Agreement or Transaction Request, Merchant will refund on demand the amount of any Loan affected, plus any finance or other charges related to such Loan. Merchant also agrees to indemnify and hold the PowerPay® Program Indemnified Persons harmless for any and all breaches of warranties, damages and costs, including attorneys’ fees, which any PowerPay® Program Indemnified Person may sustain as a result of any such event. Program Administrator, on its own behalf or on behalf of Funding Participants (as applicable), may, at its option, deduct any amount Merchant owes Program Administrator or Funding Participants pursuant to this Section 24(b) or any other provision of this Agreement from any amount Program Administrator or Funding Participants may owe Merchant. Where Merchant has reimbursed, indemnified or held PowerPay® Program Indemnified Persons harmless, or where Program Administrator, on its own behalf or on behalf of Funding Participants (as applicable), has deducted such amounts from any amount Program Administrator or a Funding Participant owes Merchant, Merchant shall have the rights specified in Section 12(b)(v), subject to the limitations contained therein.
(c) Program Administrator shall indemnify, defend (at Program Administrator’s sole expense and with counsel reasonably acceptable to Merchant) and hold harmless Merchant (and Merchant’s officers, directors, shareholders, members, partners, managers, employees and agents) (each a “Merchant Indemnified Person”) from and against any Loss directly or indirectly arising out of (i) the gross negligence or willful misconduct of Program Administrator, and (ii) its failure to comply with the terms of this Agreement or any applicable federal, state, or local law, rule, regulation or ordinance; provided that Program Administrator shall have no obligations or liability under this Section 24(c) to the extent a Loss results solely from the gross negligence or willful misconduct of a Merchant Indemnified Person.
(d) In the event that a PowerPay® Program Indemnified Person or a Merchant Indemnified Person shall receive any claim or demand or be subject to any suit or proceeding in connection with which a claim may be made against such person under this Section 25, the indemnified party shall give prompt written notice thereof to the indemnifying party and the indemnifying party will be entitled to participate in the settlement or defense thereof; provided that the failure to give such notice in a timely manner shall not impact the availability of indemnification except to the extent that it materially and adversely impacts the defense of any such claim or demand. In any case, the indemnifying party and the indemnified party shall cooperate (at no cost to the indemnified party) in the settlement or defense of any such claim, demand, suit or proceeding.
(e) In the event and for so long as any PowerPay® Program Indemnified Person actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (i) any transaction contemplated under this Agreement or (ii) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction involving Merchant or any customer of Merchant, Merchant will cooperate with such PowerPay® Program Indemnified Person and its counsel with respect thereto, make available any personnel under its control, and provide such testimony and access to its books and records, including allowing copies to be made by such PowerPay® Program Indemnified Person or its representatives, as shall be reasonably necessary in connection therewith, all at the sole cost and expense of Merchant.
- Nonwaiver and Extensions.
The parties shall not by any act, delay, omission or otherwise be deemed to have waived any rights or remedies hereunder. Each party agrees that the other party’s failure to enforce any of its rights under this Agreement shall not affect any other right or the same right in any other instance.
- Ownership of PowerPay® Program.
Neither Merchant nor any parent, subsidiary or other Affiliate of Merchant shall by virtue of this Agreement secure any title to or other ownership interest in any elements of the PowerPay® Program, including the Operating Instructions, written specifications, training materials, programs, systems, screens or any documentation or materials relating thereto, which are Program Administrator’s or any Funding Participant’s exclusive property. Merchant agrees to use the elements of the PowerPay® Program and information about the PowerPay® Program only for the purpose of enabling Merchant to use the PowerPay® Program provided under this Agreement and for no other purpose.
- Rights of Persons Not a Party.
Except as expressly provided herein, this Agreement shall not create any rights on the part of any person not a party hereto, whether as a third party beneficiary or otherwise.
- Governing Law; Severability.
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without reference to the conflict of laws provisions thereof. If any provision of this Agreement is found to be illegal, unenforceable or contrary to applicable law, such provision shall be deemed ineffective without invalidating the remaining provisions hereof and this Agreement may be reformed giving the effect to the greatest extent possible to the intentions of the parties as reflected by the ineffective provision.
- Independent Contractor.
This Agreement does not (and shall not be construed to) establish a partnership, joint venture, agency relationship or other form of business association between Merchant and Program Administrator or any Funding Participant. Program Administrator and Merchant are independent contractors, and neither party shall have the authority to speak for, commit or bind the other party.
- Actions of Employees.
Each party is responsible for the actions of its employees. In the event employment of an employee is terminated, the party that employed such former employee will take reasonable steps to ensure that such former employee no longer has access to the PowerPay® Program systems (including changing any passwords necessary to access such information or system or any confidential information relating to, or arising from, the PowerPay® Program).
All demands, notices and communications hereunder shall be in writing. Notices shall be and deemed to have been duly given (a) three Business Days from the date of mailing by regular first class U.S. mail; (b) one business day from the date of mailing by a commercial overnight carrier (providing proof of delivery); (c) the business day on which notice is sent by facsimile with a date and time confirmation sheet that the fax went through to the other party; or (d) the business day on which notice is sent by e-mail, provided that notice shall not be deemed to have been duly given to any Merchant with respect to which Program Administrator has received an indication the email was not actually delivered to such Merchant. For purposes of this Section 31, Saturdays, Sundays and federal holidays shall be considered non-Business Days. All notices to Program Administrator and a Funding Participant hereunder shall be sent to the address set forth below or to such other address, fax number or e-mail address as Program Administrator may advise Merchant in writing. Notices to Merchant shall be sent to Merchant’s postal or street address, fax number or e-mail address set forth in the Application or such other address, fax number or e-mail address as Merchant may advise Program Administrator in writing. If to Program Administrator:
1121 N. Bethlehem Pike, Suite 60-147
Spring House, PA 19477
Attention: Compliance Department
This Agreement, through execution of the Application, may be executed by facsimile or some other enforceable electronic signature, which shall be deemed an original.
Merchant hereby grants Program Administrator, on behalf of itself and Funding Participants, a nonexclusive license to use its name, trademarks, logos and other marks in connection with the administration and operation of the PowerPay® Program during and after the term of this Agreement.
- Press Release.
Merchant agrees not to issue any announcement concerning the PowerPay® Program or Merchant’s relationship with Program Administrator or any Funding Participant in a press release or other similar communication to the general public without Program Administrator’s prior written consent.
- Call Monitoring.
With respect to any calls Program Administrator may make to Merchant or Merchant may make to Program Administrator, Merchant acknowledges that such calls may be monitored or recorded by Program Administrator for quality assurance or other purposes.
- DAMAGES; ATTORNEYS’ FEES.
(a) MERCHANT SHALL BE LIABLE TO POWERPAY® PROGRAM INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY POWERPAY® PROGRAM INDEMNIFIED PERSON MAY BRING AGAINST MERCHANT (INCLUDING ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES AND OTHER EXPENSES OF ANY KIND WHATSOEVER). TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY POWERPAY INDEMNIFIED PERSON BE LIABLE TO MERCHANT OR ANY OTHER PERSON FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR COVER DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF PERSONAL PROPERTY, OR ANY OTHER SIMILAR DAMAGE OR LOSS.
(b) POWERPAY® PROGRAM SHALL BE LIABLE TO MERCHANT INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY MERCHANT INDEMNIFIED PERSON MAY BRING AGAINST MERCHANT (INCLUDING ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES AND OTHER EXPENSES OF ANY KIND WHATSOEVER). TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY MERCHANT INDEMNIFIED PERSON BE LIABLE TO POWERPAY® PROGRAM OR ANY OTHER PERSON FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR COVER DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF PERSONAL PROPERTY, OR ANY OTHER SIMILAR DAMAGE OR LOSS.
ANY SUIT, COUNTERCLAIM, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, MUST BE BROUGHT BY EITHER PARTY EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA OR THE COURTS OF THE COMMONWEALTH OF PENNSYLVANIA IN EACH CASE LOCATED IN THE CITY OF PHILADELPHIA AND COUNTY OF PHILADELPHIA, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR THE PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM, ACTION OR PROCEEDING OR JUDGMENT THEREON (IT BEING UNDERSTOOD THAT SUCH CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).
- WAIVER OF JURY TRIAL; NO CLASS ACTION.
POWERPAY® PROGRAM INDEMNIFIED PERSONS AND MERCHANT INDEMNIFIED PERSONS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, SUIT, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ENTERING INTO THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO AGREES THAT ANY SUCH PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
- Further Assurances.
Each party hereto agrees to execute all such additional documents and instruments and to do all such further things as the other party hereto may reasonably request in order to give effect to and consummate the transactions contemplated hereby.
For purposes of this Agreement, whenever the context requires: the singular number includes the plural and vice versa; the masculine gender includes the feminine and neuter genders; the feminine gender includes the masculine and neuter genders; and the neuter gender includes masculine and feminine genders.
(a) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(b) As used in this Agreement, the words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the word “without limitation.”
(c) Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits” and “Schedules” are intended to refer to Sections of this Agreement and Exhibits or Schedules to this Agreement.
(d) All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.
(e) Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein.
(f) The word “or”, when used in this Agreement, is not exclusive.
For purposes of this Agreement:
(a) “Account Number” is a unique identification number assigned by the PowerPay® Program or the applicable payment card network to a Loan.
(b) “Affiliate” is a person that, directly or indirectly, controls, or is controlled by, or is under common control with, Merchant. For purposes of this definition of Affiliate, “control” shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting shares, by contract, or otherwise
(c) “Agreement” is this PowerPay Merchant Program Agreement, as modified or amended as permitted hereby.
(d) “Application” is the PowerPay® Program Application for Merchants.
(e) “Borrower” is a customer of Merchant who has applied for and has been approved for a Loan.
(f) “Borrower Information” is any personal information about any applicant or coapplicant or any Borrower received in connection with a Loan, or an application for a Loan, whether included in a credit application or through use of the Account Number or obtained from the PowerPay® Program, including the applicant or co-applicant’s name, address, social security number, date of birth, income information, Account Number and Loan information.
(g) “Business Day” is any day that is not a Saturday, a Sunday or other day on which banks are required or authorized to be closed in Spring House, PA.
(h) “Funding Participants” are the federally insured financial institutions and other persons holding title and/or economic rights to loans originated through the PowerPay® Program.
(i) “Invoice” is defined in Section 8(e)(iii).
(j) “Loan” is a loan to a Borrower created pursuant to the PowerPay® Program.
(k) “Loan Agreement” is a written agreement between a Funding Participant and a Borrower containing the terms and conditions of a Loan.
(l) “Loan Documents” are the Loan Agreement, associated Truth-in-Lending Act disclosures and other documentation and communications from a Funding Participant (including documentation regarding online Borrower accounts and describing the rights of Program Administrator, acting on behalf of Funding Participants, to collect from past due Borrowers).
(m) “Loss” is defined in Section 24(a).
(n) “Merchant” is the person named as Merchant in the Application and, for purposes of Section 25(a) with respect to a Merchant that is not publicly-traded, shall expressly include all persons who, directly or indirectly, have an ownership interest in Merchant (and, by participating in the PowerPay® Program, Merchant represents and warrants that all authorizations and approvals of any such persons necessary for them to be included in the definition of Merchant for such purpose have been obtained).
(o) “Merchant Indemnified Person” is defined in Section 24(c).
(p) “Offerings” are any goods, services or merchandise that Merchant offers, sells, distributes, provides or installs or that are offered, sold, distributed, provided or installed on behalf of Merchant, other than any goods, services or merchandise designated by Program Administrator as not eligible for the Program in the Operating Instructions or otherwise in a notice provided to Merchant.
(q) “Operating Instructions” are any instructions or procedures that Program Administrator, at the direction and under the control of Funding Participants, communicates to Merchant and updates from time to time, provided that updates to the Operating Instructions that are applicable only to the Merchant and not other Merchants generally shall not be effective unless accepted by Merchant in writing.
(r) “person” is an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity.
(s) “PowerPay® Program” is a lending program administered by Program Administrator on behalf of Funding Participants that make consumer loans to customers of Merchants in connection with their purchases of goods, services or merchandise from Merchants.
(t) “PowerPay® Program Indemnified Person” is defined in Section 24(a).
(u) “Program Administrator” is PowerPay, LLC, a Wyoming limited liability company, together with its Affiliates, permitted assigns and permitted designees, acting as program administrator for the PowerPay® Program at the direction and under the control of Funding Participants.
(v) “Relevant Funding Participant” means each Funding Participant that holds a Loan or the economic rights thereto.
(w) “Reserve Account” is defined in Section 18.
(x) “Restricted Transactions” is defined in Section 7(g).
(y) “Transaction Request” is evidence of a sale in paper or electronic form of Offerings purchased from Merchant by a Borrower and shall include any and all information required by this Agreement.
Merchant Program Agreement Compliance Addendum
PowerPay® Program Fair Lending Commitment
The Equal Credit Opportunity Act (“ECOA”) applies to all persons who in the ordinary course of business regularly participate in the decision whether to extend credit to an applicant. The Funding Participants expect Program Administrator and Merchant to offer the PowerPay® Program in a manner that complies with the ECOA and its enacting regulations. The ECOA prohibits discrimination in the granting of credit and further states that the applicants for credit shall not be discriminated against because of the person’s race, color, religion, national origin, sex, marital status, or age (provided that the applicant has the capacity to enter into a binding contract), the fact that all or part of the applicant’s income derives from any public assistance program, or the fact that the applicant has in good faith exercised any right under the federal Consumer Credit Protection Act. State law may also apply to credit products and expand the definition of protected classes to include, among other things, a person’s sexual orientation. In addition, the ECOA contains rules as to creditor requirements for co-makers or co-applicants on an extension of credit. To help ensure compliance with the ECOA, set forth below are certain requirements and procedures with which Merchant must comply:
- Merchant must obtain a completed Program Administrator-approved credit application on each applicant. Each applicant must verify its accuracy and authorize Program Administrator and Funding Participants to investigate the applicant’s credit background.
- Merchant must advise each applicant that the credit application will be sent to Program Administrator and the Funding Participants.
- Merchant must take all reasonable steps, including obtaining complete applicant name, physical address, Social Security number and date of birth, to determine and authenticate the identity of an applicant and to confirm that the applicant has a valid government-issued photo identification document.
- Program Administrator, on behalf of the Relevant Funding Participant, will send an adverse action notice, including ECOA notifications, to each applicant whose request for credit cannot be approved.
Merchant represents and warrants to Program Administrator that the Merchant will comply with the requirements of ECOA and any regulations, policy statements, and guidance promulgated or announced by federal or state agencies, including the Consumer Financial Protection Bureau, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, or the office of the Comptroller of the Currency, concerning compliance with ECOA or other fair lending requirements. Without limitation of the general obligation to comply with ECOA, Merchant represents and warrants any plans made available to Borrowers are offered to all Borrowers equally and are negotiated with Borrowers using only good faith, competitive business reasons and in a manner that does not discriminate against any protected class under ECOA; and that loans originated by Merchant, taken as a group, will not reflect any disparate impact or treatment of a protected class. Failure to comply with the terms of this Merchant Program Agreement Compliance Addendum is a material breach of the Agreement.
Home Security and Smart Home Addendum
This addendum to the PowerPay® Merchant Program Agreement (the “Agreement”) applies to any Merchant whose Offerings include the sale and installation of home security and/or smart home systems.
In addition to the rights of Program Administrator set forth in Section 18 of the Agreement, the following shall apply to any Loan:
Program Administrator reserves the right to reserve up to 10% of every Loan to fund the Reserve Account, which amount shall be available to Program Administrator to cover the costs of canceled loans and any Loan payment defaults.
In no event will the aggregate Reserve Account for all Loans generated by Merchant exceed 10%.
Additionally, every Borrower must sign Program Administrator’s ACH Form for Recurring Automatic Payments, authorizing Program Administrator to initiate recurring electronic automated clearing house (ACH) debit entries for the repayment of all Loans.