The company that completed the above Flexxbuy application (“Company”) desires to use the consumer lending program (“Program”) created and powered 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, practices, or contractors (like the Company) to provide to its customers that are interested in a loan to finance their purchase (“Financed Purchase”) access to Program lender partners (the “Lender Partners”) through Provider’s proprietary platform (the “Platform”). The Program enables such customers (“Applicants”) to receive a loan from a Lender Partner (“Loan”) that allows the Applicants to use the Loan to make the Financed Purchase, with the funds for the Financed Purchase being paid directly to Company by the Lender Partner (a “Financing”).
This Agreement sets forth the terms and conditions of the Program under which Provider and Company will perform.
- Provider Obligations. Provider shall setup Company in Provider’s system and issue to Company Program links and associated graphical files (“Program Links”). Provider will make the Program available to Company subject to the terms and conditions of this Agreement.
- Company Obligations. For the term of this Agreement, Company shall actively promote and offer the financing provided under the Program to its customers.
- Intentionally omitted
- Financing; Payment of Funded Amounts; Lender Fee. In connection with a Financing, once the Lender Partner has cleared any open stips, and once the Applicant has e-signed the Loan, and provided Company uploaded an ID for the Customer, and upon the Company certifying to Provider at the Provider Platform that a Successful Transaction (as defined below) has occurred, Provider shall cause the applicable Lender Partner to initiate an ACH transfer of the Funded Amount (as defined below) to the Company’s depository account set forth in the Company’s enrollment form above. The timing of the Funded Amount being transferred into the Company’s bank account is usually within two (2) business days from the above being completed.
- Promotional Products. If there is a promotional product related to the Program, such ACH transfer shall be in the amount of the Funded Amount, less the Lender Fee (as defined below). Certain Lender Partners may require that the Company enter into an agreement with the Lender Partner (the “Company/Lender Partner Agreement”) and the Lender Partner will make the ACH transfer pursuant to the Company/Lender Partner Agreement. Upon Company’s receipt of such Funded Amount less the Lender Fee (if applicable), Company shall apply the full Funded Amount (without accounting for the deducted Lender Fee) as payment for the Company’s goods and/or services provided or to be provided to the Applicant.
- A “Successful Transaction” shall have occurred when (A) the Company has received and uploaded to the Provider Platform (i) a valid U.S. picture identification for the Applicant and (ii) if a Financed Purchase is conducted remotely with the Applicant, a just-taken picture of the Applicant (such as, a “selfie”) and (B) the company has made the following certification to Provider at the Provider Platform:
“I hereby certify to Provider and the applicable Lender Partner that (i) I received and reviewed a valid U.S. picture identification for the Applicant (if the Financed Purchase was conducted remotely with the Applicant, a just-taken picture of the Applicant, such as, a “selfie”), and confirmed that the picture identification showed the same full name and likeness of the Applicant and was not expired; (ii) I properly delivered the Product to the Applicant; (iii) the Applicant is satisfied with the Product and (iv) the Financed Purchase has been completed.”
The “Funded Amount” shall be equal to the amount of the Loan.
The “Lender Fee” shall be equal to the Funded Amount multiplied by the lender fee rate for the program of which Provider has made the Company aware and as may be adjusted by the Lender Partner.
- Reversed Payments and Partial Returns.
Reversed Payments. In connection with a Financing, Company shall pay to the applicable Lender Partner a Reversed Payment (as defined below) related to Financing when, for any such Financed Purchase, as applicable:
- a full Products order was not delivered to or received by the Applicant;
- a full Products order was returned or cancelled by an Applicant pursuant to Company’s return policy or an unresolved dispute with Applicant; or
- Company has caused any of the following: (i) a Loan was not applied for pursuant to the Policies and Procedures, (ii) the Financed Purchase was not processed pursuant to the Policies and Procedures, or (iii) the Loan was established, or any Financed Purchase was processed, through fraudulent means attributable to Company.
A “Reversed Payment” shall be the full amount of a Funded Amount. The procedures to complete a Reversed Payment are:
- the Company shall immediately notify Provider of the Reversed payment by email;
- Provider will immediately deliver the Company’s email notice of the Reversed Payment to the applicable Lender Partner; and
- the applicable Lender Partner will complete a reverse ACH for the Reversed Payment (the entire Funded Amount).
Partial Returns. In connection with a Financing, in the event of a Partial Return (as defined below), the procedures in this Partial Returns subsection shall be followed.
A “Partial Return” shall occur when:
- a portion of a Products order was not delivered to or received by the Applicant; or
- a portion of a Products order was returned or cancelled by an Applicant pursuant to Company’s return policy or an unresolved dispute with Applicant.
In the event of a Partial Return:
- the Company shall reimburse the Applicant for the amount of the Partial Return;
- the Company shall immediately notify Provider of the Partial Return and upload and updated invoice to the Provider Portal;
- Provider will immediately deliver the Company’s email notice of the Partial Return and updated invoice to the applicable Lender Partner; and
- the applicable Lender Partner will reflect this change in their records, but will not complete a reverse ACH related to the Partial Return.
6. Product or Service Issue. In connection with a Financing, if the Applicant returns, rejects, cancels or has issues with some or all the goods or services purchased or to be purchased from the Company or amounts claimed due related thereto, then it will be deemed a consumer objection (“Consumer Objection”). If Provider determines that an Applicant has submitted a fraudulent Loan application, such application will be deemed a fraudulent loan application (“Fraudulent Loan Application”). Upon the occurrence of a Consumer Objection or a Fraudulent Loan application, Provider will notify the Company and the Company will have ten (10) business days to investigate and use reasonable efforts to resolve the matter with the Applicant (the “Objection Resolution Period”). Unless Provider and the applicable Lender Partner both agree that the Consumer Objection or Fraudulent Loan application is unreasonable or is not supported by the evidence or disproved via evidence from the Company, then at the end of the Objection Resolution Period, Provider shall have the right to (i) make demand upon and (ii) offset, charge back, or otherwise retrieve from the Company the portion of the Loan as determined by the Lender Partner that relates to the Consumer Objection or Fraudulent Loan application, and Company shall return such amount to the applicable Lender Partner. If Provider determines that the Consumer Objection is the result of fraudulent activity or dishonest conduct on the part of the Company, the funds provided by Provider to the Company relating to the subject transaction shall be deemed to be a Reversed Payment and Company shall pay to Provider such Reversed Payment within two business days of notice from Provider.
7. Promotions. The Company acknowledges that Provider has promotional products, including 0% interest products. By written notice, including email at firstname.lastname@example.org Company may notify Provider that it wishes to offer or not offer a particular Promotion. Changing promotion preference may be done on a reasonable, periodic basis, as Company wishes.
8. Prohibited Conduct. In connection with offering the Financing or a Loan to an Applicant, Company shall not: (a) discriminate against any protected class or group; (b) discourage any Applicant from attempting to qualify for a Loan for any reason prohibited by applicable laws; (c) alter, falsify, or intentionally omit any material information or document(s) relating to an Applicant; (d) charge the Applicant a fee for applying for or receiving a Loan; (e) or, in general, commit any unlawful or fraudulent act.
9. Lender Partners Loan Products and Decisions. The Company expressly acknowledges and agrees that the terms, conditions and pricing of all loan products issued by the Lender Partners, including promotional loan products, are subject to change in the sole discretion of the Lender Partners. The Company also expressly acknowledges and agrees that decisions and determinations with respect to possible Loans shall be made at the sole and absolute discretion of the Lender Partners. The Company agrees that Provider and its Lending Partners may do background checks on the Company, including but not limited to secretary of state / good standing, background criminal checks and credit checks.
10. Third-Party Beneficiaries. Each Lender Partner shall be a third-party beneficiary as it relates to the provisions in this Agreement related to Lender Partners.
11. 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 .
12. Term & Termination. The term of this Agreement shall be for six (6) months commencing on the Effective Date (the “Initial Term”.) This Agreement shall automatically renew for subsequent six (6) months periods after the Initial Term (the “Renewal Periods) unless either party provides written notice at least thirty (30) days prior to the Renewal Period commencing (the “Termination”.) Either party may terminate this Agreement for cause with thirty (30) days written notice to the other party.
13. Non-circumvention. During the term of this Agreement and for twelve (12) months following termination, Company agrees not to circumvent Provider and work directly with the Lender Partners or to create a similar version of the Program independent of Provider.
14. 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 Agreement from any cause (including misrepresentation or negligence) whatsoever, regardless of the form of action, exceed fifty thousand ($50,000).
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 Program and also from any negligent acts or willful misconduct.
Company agrees to indemnify and hold harmless Provider and its officers, directors, employees, shareholders, successors and assigns and the Lender Partners 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 Program and also from Company’s neglect or willful misconduct with Applicants.
- 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 Agreement, Company financial data, and Provider Lender Partners, fees, and proprietary software design and processes.
- Jurisdiction. This 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 Agreement shall be in the courts of Albemarle County, Virginia.