Installment Payment Plan Program Terms (if applicable)
The company that completed the above Flexxbuy application (“Company”) desires to become a merchant affiliated with the payment plan program (“Program” created and operated by SweetPay LLC, a Virginia limited liability company (“Provider”)
in accordance with these terms and conditions (this “Agreement”). By presenting this Agreement to the Company, Provider agrees to the terms and conditions in this Agreement. This Agreement shall be dated as of the date in the application form above.
The Program allows merchants (like the Company) to provide to its customers (each a “Consumer”) that are interested in financing their purchase (“Financed Purchase”) access to Provider’s technology that powers a payment plan from Company (“Payment Plan”). This allows the Consumers to complete the sale with Company using the Payment Plan (the “Program”).
This Provider Program Agreement (this “Program Agreement”) sets forth the terms and conditions of
the Provider Program under which Provider and Company will perform.
1. Fees. The Company shall pay to Provider the fees as provided in Exhibit A attached hereto, referencing Exhibit B attached hereto.
2. Provider Obligations. Provider shall setup Company in Provider’s system and issue to Company Provider Program links, marketing materials and associated graphical files (“Program Links”) for Company to deploy on Company’s web properties, such as a public website and social media accounts (its “Web Properties”) or otherwise provide to Consumers.
3. Company Obligations. For the term of this Program Agreement, Company shall actively promote, offer, and make available the Provider Program to its potential Consumers. Company may only use Program Links as provided by Provider on its Web Properties and shall not add to or modify the Program Links without the express written consent of Provider.
4. Origination of the Payment Plan; Customer Service.
a. Company shall market the Payment Plan to Consumers at Company designated stores, online or physical location (“Company Locations”) and on its Website as agreed to between the parties. The form and content of all marketing and advertising by Company, at Company Locations, on the Website or otherwise, of the Payment Plan, shall be as approved in writing by Provider after consultation with Company.
b. Utilizing the Provider Platform, Company shall promote and assist all Consumers who express an interest in obtaining financing with completing and submitting an Application. Company shall comply with all policies and procedures provided by Provider (“Policies and Procedures”). Provider shall provide reasonable educational training as well as training materials at no cost to Company
relating to the Program. This education training shall be reasonably sufficient to allow Company’s
employees to effectively promote the Program in compliance with applicable laws.
c. Company shall provide the services and support to the Consumer that it would otherwise provide and honor for a customer who purchases Company products or services (“Product”) other than through the Provider Program. Except for usual and customary fees and costs charged by the Company in connection with purchases using other payment tender types, in no event shall Company impose any surcharge, additional cost, fee or other obligation, however designated, on the Consumer resulting from Consumer establishing the Payment Plan.
d. Company shall process all Consumer complaints and disputes in connection with a Financed Purchase, and shall do so in accordance with Company’s policies. Company shall promptly provide to Provider relevant information relating to any such complaint and dispute to the extent requested by Provider. Each of Provider and Company shall reasonably cooperate with, and provide information to, the other Party in the performance of its duties and obligations pursuant to this Agreement and the Provider Program, including handling Consumer complaints and disputes.
5. Payment Plan.
a. With respect to the Company offering the Payment Plan, Company shall comply with the terms applicable to the Company as set forth in Exhibit B (Payment Plan Provisions). By written notice, including email, Company may notify Provider to enable or disable the Payment Plan as a product offering in the Company’s Program Link, providing reasonable notice.
b. A function of the service required in performance of the Payment Plan includes the collection of the Consumer’s down payment and account setup fee (the “Initial Payment”). The Initial Payment may be collected by Company or Provider, depending on Company’s sales process. Should Provider collect the Initial Payment, Company agrees to have Provider retain an interchange fee equal to 1.0% if a bank draft or debit card is used or 3.5% if a credit card is used by the Consumer (the “Interchange Fee”). Should Provider collect the Initial Payment, it will ACH to Company the down payment, less Interchange Fee, after the payment clears Provider’s bank. If Company collects the Initial Payment, Provider will invoice Company for the account setup fee portion of the Initial Payment and the transaction fee specified in Exhibit A.
c. In the event that (i) any Products were not delivered to or received by the Consumer; (ii) any Products were returned or cancelled by a Consumer pursuant to Company’s return policy or (iii) there is an unresolved dispute between Company and Consumer, and a Consumer requests the return of the down payment, then Provider shall make Company aware of such Consumer request and Company shall resolve the dispute with the Consumer. Upon notice from the Company that the Company has returned the Product and down payment to the Consumer, Provider will consider the Consumer Agreement null and void.
1. Provider Not An Agent. Nothing in this Agreement shall be construed to make Provider an agent of Company as it relates to the Company’s business, including Provider’s performance of the Provider Assist Program. Provider shall have no authority to and shall not negotiate any price or terms relating to any Product.
2. Prohibited Conduct. Company shall not: (a) discriminate against any protected class or group when offering the the Payment Plan to a Consumer; (b) discourage any Consumer from attempting to qualify for the the Payment Plan for any reason prohibited by applicable laws; (c) (i) alter, (ii) falsify, or (iii) intentionally omit any material information or document(s) relating to a Consumer; (d) advise or cause a Consumer to provide false information in their application; (e) charge the Consumer a fee for applying for or receiving the the Payment Plan; (f) through Company’s action or inaction, cause any part of the the Payment Plan agreement signed by the Consumer or the the Payment Plan itself to be unenforceable, subject to rescission, modified, or waived; (g) make any agreement, commitment or representation to a Consumer relating to the Provider Program or the Payment Plan not previously authorized in writing by Provider; (h) misrepresent any potential or actual the Payment Plan terms or requirements to a Consumer; or (h) represent to a Consumer whether the Consumer has or has not been approved for the the Payment Plan unless previously notified of such approval or non-approval in writing or via electronic methods by Provider.
3. Applicable Laws. Each party hereby agrees to comply with all applicable United States federal, state and local laws, statutes, rules and regulations in connection with its participation in the Program.
4. Term & Termination. The term of this Program Agreement shall be for one month commencing with the issuance to Company of Program Links (the “Initial Service Period”.) Either party may terminate this Program Agreement after the Initial Service Period with a thirty (30) days written notice to the other party (“Termination”.) This Program Agreement shall continue on a month-to-
basis after the Initial Service Period until such Termination is made. Either party may terminate this Program Agreement for cause with thirty (30) days written notice to the other party. Upon Termination, Company agrees to cooperate with Provider in order to immediately remove the Provider logo, Program Link graphics and any other mention of Provider from its Web Properties.
10. Title and Ownership. Title to and ownership of the Provider Program, any related software and documentation, and all related trademarks, copyrights, patents, trade secrets and other proprietary rights, are and will remain the exclusive property of Provider.
11. Legal Capacity to Perform. The Company has, and will continue to have throughout the term of this Agreement, the legal capacity to perform and provide the Product, and will provide such Product in a manner as described, marketed, and/or advertised to the Consumers.
12. Non-circumvention. During the term and for twelve (12) months following termination, Company agrees not to circumvent Provider and create a similar version of the Provider Program independent of Provider.
13. Limitations of Liability. In no event will either party or its suppliers or their respective affiliates, employees, or agents be liable for loss of profits, business, use, or data, or for interruption of business, or any other indirect, incidental, consequential or punitive damages even if advised of the possibility of such damages, regardless of the form of action. Except in the event of Company
circumvention of Provider, in no event will either party’s aggregate, cumulative monetary liability for any damages under or related to this Program Agreement from any cause (including misrepresentation or negligence) whatsoever, regardless of the form of action, exceed fifty thousand ($50,000).
Company agrees to indemnify and hold harmless Provider and its officers, directors, employees, shareholders, successors and assigns from and against any and all costs, claims, demands, damages, losses, and liabilities (including reasonable attorney’s expenses, fees and costs) arising from or in any way related to Company’s improper, unauthorized, or variant use of the Provider Program and also from Company’s neglect or willful misconduct with Consumers.
Provider hereby agrees to indemnify and hold harmless Company from and against any and all costs, claims, demands, damages, losses, and liabilities (including reasonable attorney’s expenses, fees and costs) arising from or in any way related to Provider’s administration of the Provider Program and also from any negligent acts or willful misconduct.
15. Severability. If any one or more of the provisions contained in this Program Agreement shall be found by a court of law or state or federal agency to be invalid or unenforceable in any respect, such provision(s) shall be construed as having never been contained herein and shall not affect the validity and enforceability of any other provision of this Agreement.
16. Confidentiality. The parties agree not to disclose and/or distribute to any third party not affiliated with the party any data or information obtained from the other party that is understood to be confidential, including, but not limited to, this Program Agreement, Company financial data, fees, and proprietary software design and processes.
17. Entire Agreement. This Program Agreement constitutes the entire agreement between the parties and there are no other agreements between the parties except as expressly contained herein. This Program Agreement may be amended only by a writing signed by both parties hereto. This Program Agreement supersedes and invalidates any prior agreement between the parties.
18. Jurisdiction. This Program Agreement shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Virginia and the parties agree that the venue of any litigation arising out of any dispute concerning this Program Agreement shall be in the courts of Albemarle County, Virginia.
Payment Plan Provisions
1. Unlimited Contracts: Company may offer an unlimited number of contracts (each, a “Contract”) to consumers (“Consumers”).
2. Monthly Payments. Provider will bill Consumers monthly based on the schedule generated when the Contract is initiated. ACH is the preferred payment method, with Consumer payments automatically deducted from their checking or savings account each month. Credit cards are not accepted. Consumers who do not opt-in for ACH automatic payments may still be approved and may mail in paper checks for their monthly payment.
3. Consumer Account Setup Fee. Provider will collect a fee of $59.00 from the Consumer (the “Account Setup Fee”).
4. Credit Checks. Provider does not perform a credit check on Consumers. Other verification processes may be used to verify bank account accuracy, funds, and Consumer addresses & identification.
5. Interest Rate. Consumers only pay interest on the principal balance, not the total sale amount. The principal owed and the interest rate are used to determine the Consumer’s monthly payment.
6. Transaction Fee. In consideration of Provider providing the technology to facilitate Payment Plans, the Company shall pay to Provider a transaction fee for each Payment Plan executed. At Exhibit B there is a Transaction Fee table which sets forth the different transaction fee rates. In a separate writing outside of this Agreement (including email), the parties will agree on the dollar amount of the transaction fee applicable to the Program. If Provider collects the Initial Payment from the Consumer (down payment and Account Setup Fee), Provider will retain the Transaction Fee, Account Setup Fee, and Interchange Fee from the Initial Payment it ACHs to Company. Should Company collect the Initial Payment, Provider will invoice Company for the Transaction Fee and Account Setup Fee, and will withdraw the amount in the invoice from the Company’s bank account on file with Provider.
7. Contract Servicing Fee. Company shall pay Provider a contract servicing fee (as hereinafter described, a “Contract Servicing Fee”). The Contract Servicing Fee shall be a percentage of the total amount of a sale or service that results in a Contract. At Exhibit B there is a Contract Servicing Fee table which sets forth the different percentages for the Contract Servicing Fee. In a separate writing outside of this Agreement (including email), the parties will agree on the Contract Servicing Fee percentage applicable to the Program. The monthly Contract Servicing Fee will be calculated by multiplying such percentage by the purchase price and dividing by the number of payments to be made by the Consumer. The Contract Servicing Fee will be deducted from the funds collected from the Consumer’s payment and forwarded to the Company each month. If a Consumer stops paying on a Contract, both Provider and the Company will not receive the money they are due. If a Consumer is late making payment but eventually pays all or some of a monthly payment, Provider will retain the Contract Servicing Fee. If a Consumer’s account is sent to a collection agency, all of the net recovered funds will go to the Company, and Provider will no longer collect the Contract Servicing Fee for that Consumer. The Contract Servicing Fee will be deducted in full for accounts that are pre-paid by Consumers at the time of pre-payment.
8. Payment to Company. All interest and principal collected under a Contract will be forwarded to the Company on a monthly basis and electronically into the Company’s bank account, less the Contract Servicing Fee.
9. Bank Fees. Provider will pay for predetermined bank fees, including ACH fees, related to the Contract Servicing Fee.
10. Return Policy. If a product return falls within the Company’s approved return policy criteria and results in a reversed sale, Provider will reverse any Company and/or Consumer fees on that transaction. If a Company accepts a product return at a discount and the Contract is willingly closed or terminated by the Company, Provider will no longer charge additional Contract Servicing Fees beyond what has already been collected for that Contract. The Transaction Fee will be retained by Provider.
11. Returned Check/ACH Policy. A non-sufficient funds (NSF) fee will be added to the Consumer’s outstanding balance for each returned check/ACH. Any NSF fees collected from a Consumer will be retained by Provider.
12. Late Fees/Collections/Legal Action. Provider may charge and receive late fees from the Consumer when additional services are required to collect under the Contract, including, but not limited to, the following: past due calls, sending additional invoices, legal fees, certified mail, returned checks/ACH, returned credit card processes, and tracking of bad phone and address information. Provider will pay to the Company fifty percent (50%) of the late fees that Provider collects from Consumers. Provider will deliver such percentage of the late fees to the Company within 30 days of receipt from the Consumer. Provider reserves the right to determine if and when a delinquent Consumer account should be sent to a collection agency. Once sent to a collection agency, the account cannot be withdrawn from the collection agency. Provider may pursue legal action against a Consumer in default in order to recover the outstanding balance for the Company. Attorney fees, court costs, and any legal costs in this process may be charged to the Consumer during the litigation process. In case of default, the Consumer account may be sent to a collection agency. All net recovered funds on the outstanding balance will be sent to the Company. Notwithstanding the foregoing, judgments collected will pay court and legal fees first, followed by the outstanding balance. Provider may close a Consumer account in bankruptcy. ALL BILLING AND COLLECTION ACTIVITIES ARE THE RESPONSIBILITY OF SWEETPAY, AND ALL DISCRETIONARY DECISIONS RELATED TO SUCH ACTIVITIES ARE MADE ONLY BY SWEETPAY.
13. Financial Responsibility. Although Provider may use methods of collecting the Consumer debt, including invoicing, calls, emails, collections, credit reporting and legal action, IT IS NOT FINANCIALLY RESPONSIBLE TO PAY FOR A DELINQUENT CONTRACT BALANCE. SWEETPAY IS NOT RESPONSIBLE FOR ANY UNPAID PORTION OF THE CONTRACT BORROWED AMOUNT.
14. Limitation of Liability. Provider is not a lender and is not responsible for any unpaid debts to the Company, or for any issues that arise from actions of Company employees or Consumers. IN NO EVENT SHALL COMPANY OR SWEETPAY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS PROGRAM AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF THE DIRECT DAMAGES ACTUALLY INCURRED OR THE FEES PAID BY THE COMPANY TO SWEETPAY DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE PARTIES AGREE THAT SWEETPAY WILL BE LIABLE FOR DAMAGES ONLY IF IT FAILS TO EXERCISE ORDINARY CARE, AND THAT IT SHALL BE DEEMED TO HAVE EXERCISED ORDINARY CARE IF ITS ACTION OR FAILURE TO ACT IS IN CONFORMITY WITH COMMERCIALLY REASONABLE PRACTICES.
Exhibit B- Transaction and Service Fee Schedule
(subject to change at any time)