Agreement: Terms and Conditions
- The Agreement
The Service Agreement is for the exclusive purpose of enabling the Merchant listed on the Registration Form (Exhibit A) collectively referred to hereinafter as the “Merchant” to utilize the ExtendCredit.com system (hereinafter “the System”) provided by ExtendCredit.com, a Nevada corporation (hereinafter “Company”), in order to extend in‐house payment plans to select customers and service the resulting outstanding debts. The costs to Merchant for participation in the program and to utilize the System shall be those presented in the “Order Form” (Exhibit B) These Terms and Conditions of the Service Agreement are attached to, and incorporated by reference in, the Registration Form completed and executed by the Merchant. The Registration Form, the Order Form, and these Terms and Conditions of the Service Agreement are collectively referred to as the “Agreement.” This Agreement is binding and effective upon the later of Merchant’s execution of the Registration Form and acceptance by Company evidenced by Merchant being activated on the System wherein Merchant will be issued a user name and password to access and utilize the System. Merchant acknowledges that Merchant will not receive a countersigned copy of this Agreement from Company unless requested by Merchant in writing.
- Merchant Costs and Fees
The costs to Merchant for participation in the program and to utilize the System shall be those presented in the Order Form. Company reserves the right to adjust these fees from time to time with 30 days written notice to Merchant. All fees incurred by and payable by Merchant under this Agreement shall be billed to Merchant on or about the first (1st) business, banking day of a given month for those fees incurred during the previous month. At the time of billing, the total of all fees due shall be collected by Company via electronic debit to the Merchant’s bank account indicated on the Registration Form. Merchant hereby authorizes Company to initiate such electronic debits to Merchant’s designated bank account. All Company pricing information and documents are deemed confidential, and Merchant shall not disclose such information without Company’s written consent.
- Collection and Deposit of Payments due Merchant
The System shall collect payments due Merchant from borrowers by initiating electronic debits to the borrowers’ bank accounts on the due dates and in accordance with the payment schedules depicted on borrowers’ agreements or promissory notes or, if subsequently modified by Merchant, in accordance with the then current payment schedule on record within the System. For Merchant using both debit/credit cards and ACH, payments successfully collected will be deposited to the Merchant’s bank account, and the System will subsequently transfer the appropriate fees from the Merchant’s bank account to H3 Financial Services. For Merchants using only ACH processing, payments successfully collected will be deposited into the System’s trust account where the fees will be deducted and the remainder sent to the Merchant’s designated bank account on record in the System, approximately 2‐3 weeks after the collection date in order to offset any electronic debits which may be returned or rejected by an individual borrower’s bank. Any electronic debits reversed or revoked by any borrower or returned by the borrower’s bank after funds have been deposited to Merchant will be reversed by the payment processor and under the terms and conditions of the payment processor’s Agreement. In the event that Company cannot resolve a delinquent payment with a borrower and deems the deficiency to be without resolution by Company’s Customer Service, Company’s Customer Service shall mark the account as “Suspended.” Merchant is responsible for designating which accounts are to be sent to collections. For all accounts designated for collections, the System will forward the data relative to that borrower’s agreement to a qualified, third party collections agency who shall commence professional collections activities on Merchant’s behalf.
- Merchant Representations and Warranties
- Utilization of Credit Reporting Option and Borrower Information
Merchant acknowledges that the System provides Merchant with summarized information relative to the credit condition of a prospective consumer to assist Merchant in making a decision as to whether or not Merchant wishes to extend credit to that individual. This information is an estimation of creditworthiness based upon the compilation and analysis of the borrower’s current available credit history. Due to Merchant having access to this information, Merchant must agree to the following practices in order to accommodate applicable Federal Regulations in regard to obtaining consumer credit information and retaining sensitive consumer information. Merchant agrees and acknowledges that it shall:
- Legal Disclaimer
Merchant agrees and acknowledges that none of the System‐generated documents, training sessions, usage guides, codicils of this Agreement or any and all other information provided to Merchant in support of the System should be construed or considered as legal advice. Merchant is encouraged to contact Merchant’s qualified legal counsel in regard to any questions or concerns over the use of the System or other recommended best practices and any liabilities which could arise from the use of the System and/or the effect of any applicable Federal or State Laws, including but not limited to those regarding the maximum interest rates chargeable by Merchant and Merchant’s warranty obligations. Company hereby asserts and Merchant agrees that Company shall bear no liability whatsoever in regard to Merchant’s use of any and all information and materials provided with respect to the use of the System.
- Borrower Fees
Merchant acknowledges that unless Merchant indicates otherwise, the borrower’s payment will include the fees as identified in Exhibit B that are listed as chargeable to the customer. For Merchants using both debit/credit card and ACH processing, the full payment will be deposited into the Merchant’s designated account and the fees due Company will subsequently be transferred to Company per Section 2. For Merchants using ACH processing only, the full payment will be collected from the borrower’s account directly to the System’s trust account, any applicable fees will be withheld and the remaining amount will then be sent to the Merchant’s designated account. Borrowers will be charged a Late Payment Fee ($25.00) for each payment that is late or missed and any collection fees that are incurred if a collections action is required. These fees are disclosed to and accepted by the borrower within the fee schedule of the promissory note.
- Term and Termination
This Agreement shall have an initial term of one (1) year and, unless thirty (30) days prior written notification is provided by either party, shall automatically renew for successive one (1) year terms under the same terms and conditions expressed herein. Company shall have the right to terminate this Agreement for cause immediately and without notice in the event of a breach of this Agreement by Merchant. Merchant may terminate this Agreement on the terms and conditions expressly provided in Section 13. Furthermore, either party may terminate this Agreement without cause by providing the other party with thirty (30) days written notification.
- License and Trademarks
Subject to the terms and conditions herein, Company hereby grants, and Merchant hereby accepts, a non‐exclusive, non‐transferable license, without right to sublicense, to use the System for the sole and limited purposes of extending credit terms or financing to its customers as set forth herein. Company retains the right to materially redesign, modify, update or upgrade the organization, navigation, structure, branding, features, functionality and look and feel of the System at any time without prior notice. Merchant may only use Company’s trademarks, trade names, service marks and/or logos (collectively “Trademarks”) with Company’s prior written approval for each specific use. Nothing herein will grant to Merchant any right, title or interest in Trademarks of Company or any goodwill arising from use of the Company Trademarks. Merchant agrees not to challenge the validity of or attempt to register any Trademark of Company, nor will it adopt any derivative or confusingly similar trademarks, brands or marks or create any combination marks with any Company Trademark. If given written approval, Merchant will use the Trademarks only in accordance with Company’s trademark usage policies as such may be in effect from time to time and only in accordance with the provision of the terms of this Agreement. If at any time, Company believes that the use of its Trademarks by Merchant fails to otherwise comply with the trademark usage guidelines, Company shall so notify the Merchant in writing. Upon receipt of such notification, Merchant shall immediately initiate steps to conform to the trademark usage guidelines and shall affect such conformance or cure as promptly as possible and in any event within fifteen (15) days.
Merchant recognizes that (i) the summarized information provided to Merchant relative to the credit condition of a prospective borrower is statistical and may not be predictive as to any particular borrower and (ii) other factors must be considered in making a credit decision. Moreover, Merchant acknowledges and agrees that Company has no control over the conditions under which Merchant uses the system, and Company does not and cannot warrant the results obtained by such use. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE PROCESSING AND/OR COMPANY’S SERVICES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD‐PARTY RIGHTS OR THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT WARRANT THAT OPERATION OF THE CREDIT SERVICING PROCESS WILL BE UNINTERRUPTED, ERROR‐FREE, OR SECURE. MERCHANT ACKNOWLEDGES THAT THE SYSTEM IS PROVIDED FOR USE BY MERCHANT “AS IS.”
- Limitation of Liability
IN NO EVENT SHALL COMPANY’S, OR IT’S AGENTS OR PARTNERS, AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FROM ANY CAUSE, EXCEED THE TOTAL FEES WITHHELD BY COMPANY FROM MERCHANT UNDER THIS AGREEMENT FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE DISPUTE AND/OR CAUSE OF ACTION AROSE. IN ADDITION, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF REVENUES OR LOSS OF PROFITS), EVEN IF COMPANY, ITS AFFILIATES, AGENTS OR PARTNERS, OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER ANY CONTRACTUAL, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT. COMPANY, ITS AGENTS OR PARTNERS, SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING SERVICES TO MERCHANT OR ITS CUSTOMERS OR IN ANY OTHER PERFORMANCE UNDER THIS AGREEMENT. It is agreed that in no event will Company, or its agents or partners, be liable for any claim, loss, billing error, damage, or expense caused by Company’s performance or failure to perform hereunder that is not reported in writing by Merchant to Company within thirty (30) days of such failure to perform or, in the event of a billing error, within sixty (60) days of the date of the first such invoice or applicable statement. However, under no circumstances will Company be liable to Merchant for delays in the transmission of information.
Merchant agrees to indemnify, defend and hold Company, and its officers, directors, servicing partners, agents and employees, harmless from and against any liability, claims, demands, costs, losses, damages and/or reasonable attorney’s fees incurred or suffered by Company as a result of or arising from Merchant’s conduct of its business, any transactions processed under this Agreement, Merchant’s breach of any obligations or provisions under this Agreement or Merchant’s violation of applicable law, regulation or rule. In the event that Company receives any claim or demand or becomes subject to any suit, proceeding or other action under which a claim for indemnification may be made by Company under this Agreement, Company shall promptly notify Merchant in writing of the claim or legal action. Merchant shall (a) reasonably cooperate with Company in the making of any of Merchant’s or Company’s claims or defenses; and (b) provide information, assist in the resolution of the claim and make available at least one employee or agent who can testify regarding said claims or defenses. Any and all costs incurred by or on behalf of Company for responding to court orders of any type including subpoenas for transactions generated by Merchant or from doing business with Merchant shall be due and payable by Merchant to Company upon demand. Such costs include but are not limited to attorney’s fees and costs, administrative costs and costs for employee time, travel and lodging relative to such response. The Merchant shall, upon written notice from Company, immediately undertake payment to counsel selected by Company for the defense of any such claim or action. If Merchant wishes to settle any such claim involving Company, Merchant shall obtain Company’s prior written approval of such settlement. Conversely, Company agrees to indemnify, defend and hold Merchant, and its officers, directors, agents and employees, harmless from and against any liability, claims, demands, costs, loss, damages and/or reasonable attorney’s fees incurred or suffered by Merchant as a result of or arising from Company’s willful misconduct or violation of applicable law, regulation or rule, excluding any claim arising from the violation by Merchant of the terms and provisions of this Agreement. In the event that Merchant receives any claim or demand or becomes subject to any suit, proceeding or other action under which a claim for indemnification may be made by Merchant under this Section 12, Merchant shall promptly notify Company in writing of the claim or legal action. Merchant shall further (s) reasonably cooperate with Company in the making of any of Company’s or Merchant’s claims or defenses; and (b) provide information, assist in the resolution of the claim and make available at least one employee or agent who can testify regarding said claims or defenses.
- General Provisions
Company reserves the right to amend at any time and from time to time any term or condition of this Agreement including, without limitation, fees by providing Merchant written notice, and such amendments shall be effective thirty (30) days following said notice. If Company so amends this Agreement, Merchant shall have the right to terminate this Agreement if Merchant provides written notice of termination to Company within the thirty (30) day period immediately following Merchant’s receipt of such Amendment. The parties acknowledge that Company’s third party data suppliers are intended third‐party beneficiaries of this Agreement. Company may be required to report the initial and continued status of all transactions under this Agreement to third party data providers. Company may use designees to assist in the performance of Company’s obligations hereunder and, notwithstanding any other provision of this Agreement, Company may delegate any of its obligations hereunder to such designees. Merchant may not assign or delegate any rights or obligations under this Agreement without Company’s prior written approval. Nonperformance by either party will be excused, except Merchant’s obligation to pay under this Agreement, to the extent that performance is rendered impossible by any force majeure event and not caused by the gross negligence or willful misconduct of the non‐performing party. The relationship of the parties established by this Agreement is that of independent contractors. This Agreement will be governed by and construed under the laws of the State of California without reference to conflict of law principles. The parties agree that jurisdiction shall be in Superior Court of the State of California or the Federal Courts sitting in Orange County California. This Agreement, the Merchant Authorizations and Representations, the Terms and Conditions found on H3FinancialServices.com, as amended from time to time, together with all other exhibits and attachments hereto and the other documents referenced herein, sets forth the entire agreement and understanding of the parties relating to the subject matter herein (other than agreements relating to confidentiality) and merges all prior discussions between them. Except as otherwise specifically provided in this Agreement, no modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by both parties, and the waiver of any breach or default will not constitute a waiver of any other right hereunder or any subsequent breach or default. If any provision in this Agreement is found invalid by a court of competent jurisdiction, such provision will be construed, if feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement.
- Counterparts; Electronic Copies
This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and together shall be deemed one and the same agreement. This Agreement may be executed, delivered or stored, among other ways, electronically, and any electronic copy shall be deemed as valid as an original.
Any notice required or permitted to be given by either party under this Agreement will be in writing and will be deemed given: (i) the next business day after pre‐paid deposit with a commercial courier service that is contracted to deliver the item the next business day, (ii) upon receipt, if personally delivered, (iii) three (3) days after deposit, postage pre‐paid, with first class mail (certified or registered if available), or (iv) upon receipt, when sent by facsimile to the other party at its address set forth in the Registration Form, or to such new address as may from time to time be supplied hereunder by either party to the other party.
- Not disseminate, release or resell consumer credit information to any outside party.
- Not use the information gathered for credit reports for purposes outside of the course
of normal business and determining borrower creditworthiness.
- Not request a credit report without the consumer’s (borrower’s) express written
permission as provided on the Application for Credit form.
- Cooperate with any investigations performed by Company or its designated Credit
Bureau in regard to the actual or suspected misuse, misappropriation or infringement of
credit or other consumer information.
- Immediately report any detected or suspected inappropriate or unauthorized use of the
System and or Credit Reports to Company.
- Prior to accepting an application for credit or initiating a credit report inspect one or
more forms of identification, one of which should be a government‐issued photo ID, from the applicant. In order to insure the proper identity of the individual is that of the designated applicant.
- Insure that each trusted employee with permission to access the System is assigned a unique user name and password for the System and that employees do not share or exchange access credentials.
- Immediately disable user names and passwords for any terminated, reassigned or suspended employee with System access.
- Not issue user names and passwords for access to the System to anyone other than your own trusted and authorized employees.
- Instruct employees utilizing the system on the importance of security and privacy of consumer information
- Be certain that any consumer information retained outside the System, either electronically or in paper copy, is stored in a secure location.
- Instruct authorized users of the System that credit reports cannot be initiated under any circumstances for anyone other than a borrower who has provided their permission in writing and not for themselves, you, another owner, any other person or any employee.
- Read and become familiar with the terms of the Fair Credit Reporting Act, as amended by the Consumer Credit Reporting Reform Act of 1996 (FCRA), which is available on the Federal Trade Commission’s Website at www.ftc.gov/credit
- Retain all credit applications and, if applicable, purchase and credit documents for a minimum of 25 months.
- Not use the information provided under this Agreement for an “adverse action” as defined in FCRA unless the reason codes are delivered along with any scores delivered to the applicant.
- Comply with all federal, state and local laws, including but not limited to FCRA.