PLATFORM ACCESS AND USE AGREEMENT
This Platform Access and Use Agreement (the “Agreement”) is entered into as of 02/23/2018 (“Effective Date”) by and between LendingUSA, LLC, a Delaware limited liability company having a principal place of business at 15303 Ventura Boulevard, Suite 850, Sherman Oaks, California, 91403 (“LUSA”), and Merchant (“Merchant”, and together with LUSA, the “Parties”).
WHEREAS, LUSA has developed, owns and operates the LendingUSA.com website -a loan application screening, origination, servicing and funding platform (collectively, the “Platform”)which, among other things, manages loan application collection, pre-screening, validation, and e-signing of financing documents for one or more lenders (each such lender, or its assignee of the related loan, a “Lender”) interested in potentially entering into finance transactions with customers of Merchant; and
WHEREAS, Merchant desires to have rights to access and utilize the Platform to submit information with respect to consumers who are interested in financing the services offered by Merchant (“Consumers”), the goods and services such Consumers may purchase from Merchant and the terms of such transactions in order to induce Lenders to offer and extend financing to such Consumers to pay all or part of the agreed price for such goods and services; and
WHEREAS, LUSA, through the Platform, is willing to convey such information to certain lenders who, at their sole discretion, may elect to offer credit terms to such Consumers (which may be proposed retail installment sales transactions or unsecured open end revolving credit account arrangements) with such Consumers, and, if such terms are accepted by such Consumers, may supply credit agreements, notes and related documents and disclosures to such Consumers through the Platform for execution or acknowledgment thereby and return to such Lenders through the Platform; and
WHEREAS, in furtherance of the foregoing, Merchant is willing to affirm the accuracy of certain information submitted through the Platform in relation to such Consumers and such transactions and to allow LUSA to assign certain of the provisions of this agreement to the relevant Lender in relation to any related extension of credit by such Lender to such Consumer; and
WHEREAS, LUSA and Merchant desire to establish the terms and conditions under which Merchant shall be authorized to access and use the Platform and the provision of certain other services as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises made herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties agree as follows:
1. Platform Access and Use
1.1. Provision of Initial Access and Integration Services. Within not more than ten (10) business days of LUSA’s confirmed receipt of (i) this agreement duly executed by Merchant and (ii) payment by Merchant of the Annual Membership Fee and amounts due in relation to Merchant’s first month of the use of the Platform specified on Schedule A, LUSA shall (i) provide to Merchant access to the Platform by providing a hyperlink to the Platform access page and (ii) commence providing customer service support and assistance appropriate to the confirmation of and continued functionality of the Platform as accessed by Merchant, including “dry run” demonstration of the various functions, steps, processes, pages and links necessary and appropriate to use of the Platform by Merchant and Customers to apply for credit transactions (i.e., submit “Applications”), validate certain information, receive offers of credit, complete credit documentation (i.e. receive, review, finalize and execute and related
documents relating to retail installment sales transactions (“Contracts”) or unsecured open end revolving credit accounts (“Accounts”), cause funding of approved Contacts or Accounts, track funding thereunder and engage in required post-closing actions in relation to extensions of credit (the “Services”).
1.2. Limited License to Access and Use of the Platform.
(a) Subject to the terms and conditions of this Agreement, LUSA hereby grants Merchant a revocable, non-exclusive, non-sub licensable, non-transferable license, for the term of this Agreement, to access the Platform for the purposes specified in Section 1.1..
(b) Merchant shall not disclose any user identification(s) and/or password(s) assigned to Merchant and used to access the Platform to any third party save to the extent required to enable use of the Platform in accordance with this Agreement. If Merchant becomes aware of any possible unauthorized access to the Platform, Merchant shall immediately notify LUSA. Merchant shall be entirely responsible for all access to the Platform where such access is facilitated Merchant’s user identification(s) and password(s) whether such access is with or without Merchant’s consent; provided always that Merchant shall have no such responsibility if any such access results wholly and directly from any negligent act or omission by LUSA.
2. Privacy, Content.
2.1. As between LUSA and Merchant, LUSA shall be the sole and exclusive owner of all information provided by the Merchant or Consumers to LUSA through the Platform or otherwise, including, without limitation in relation to LUSA Consumers’ interest in entering into a financing with a Lender(“Data”). Merchant hereby assigns sells and transfers unto LUSA all its right title and interest in the Data solely for the purposes set forth in this Agreement. Merchant acknowledges and agrees that LUSA may assign all of its rights and interests in and to Data to Lenders, subject to compliance with applicable laws governing the protection of privacy of such data.
2.2. Merchant shall refrain from disclosing, selling, or otherwise distributing Data to any third parties.
3. Representations and Warranties; Disclaimer.
Merchant represents and warrants that:
3.1. It has full power and authority to perform its obligations under this Agreement and has no outstanding obligations or agreements that conflict with this Agreement.
3.2. This Agreement, when signed by its duly authorized representative, constitutes a valid and legally binding obligation of the Merchant that is enforceable in accordance with the terms of this Agreement.
3.3. It is solvent and no insolvency or bankruptcy decision, nor any decision to wind-up its affairs, has been filed, no petition has been filed to initiate proceedings to issue such decision, no resolution has been adopted by a competent body regarding the winding up of its affairs which petition or resolution has not been withdrawn, and that as of the date of execution of this Agreement, no legal grounds exist for such a decision, petition or resolution.
3.4. It is not engaged in, nor are there any circumstances which are likely to give rise to, any litigation, arbitration or regulatory proceedings and there are no such proceedings pending or threatened by or against it, and that it is not the subject of any investigation, examination, inquiry or enforcement proceedings or process by any Governmental Authority, nor are there any circumstances which are likely to give rise to any such investigation, inquiry, proceedings or process. As used herein the term “Governmental Authority” means any federal, national, provincial, state or local government or other political subdivision thereof, any entity, authority, agency or body exercising executive, legislative, judicial, regulatory or administrative functions of any such government or political subdivision, any self-regulatory organization, and any super-national organization of sovereign states exercising such functions for such sovereign states.
3.5. It is not subject to any judgment, decree, or order that would conflict with its ability to perform its obligations under this Agreement, and there is no pending action before a court of law with competent jurisdiction or before a Governmental Authority as of the date of this Agreement that would result in a judgment, decree, or order that would conflict with the Merchant’s ability to perform its obligations under this Agreement.
3.6. It will access and use the Platform fulfill its obligations under this Agreement in compliance with all applicable laws and regulations, including without limitation, the Fair Credit Reporting Act, the Fair and Accurate Credit Transactions Act, the Federal Trade Commission’s Telemarketing Sales Rule, the Telephone Consumer Protection Act, the CAN-SPAM Act of 2003, the Truth in Lending Act, the Equal Credit Opportunity Act, the Electronic Funds Transfer Act and any other applicable federal, state, and local consumer protection and other laws, regulations, and standards (the “Laws”).
3.7. The information provided by Merchant and/or by Consumers (i) does not infringe and shall not infringe the Intellectual Property Rights of any third party or any applicable Laws (ii) shall meet or exceed the applicable standards under any applicable Law, including without limitation, standards for truthfulness and fairness. As used herein the term “Intellectual Property Right” means any and all rights existing from time to time under patent law, copyright law, moral rights law, trade secret law and/or trademark law, whether registered or unregistered, and any and all other similar proprietary rights, as well as any and all applications, renewals, extensions, divisionals, continuations, restorations and re-instatements thereof, now or hereafter in force and effect worldwide.
3.8. It has the right to provide to LUSA any materials, files and/or information provided by it and/or by Consumers, including, without limitation, any Data, free of any obligation of confidentiality to any third-party, and that such information is accurate and, if pertaining to any individual, has been collected and submitted with such individual’s consent. In particular, in relation to each use of the Platform by a Consumer to submit an Application and to complete, execute and deliver documents comprising a Contract or Account by or on behalf of any Consumer, Merchant has: (a) confirmed the identity of the Consumer by means of examining at least one form of identification that includes a photograph and that is legally recognized and accepted by the state government of the state in which Merchant has used the Platform to submit such Application, (b) confirmed that the address and social security number information supplied by Consumer to Merchant on or in relation to any contract
for the sale by Merchant to Consumer of goods and services is the same information supplied by Consumer in such Application, (c) witnessed that Consumer has received and reviewed each document comprising a Contract or Account, including each related disclosure form, and has affirmed the same to be accurate and complete and consistent with Consumer’s expectations of terms and conditions for such financing, and (d) witnessed that Consumer (and no other person) has executed each signature page or initial box to be executed or initialed by Consumer on the Application and in each document comprising a Contract or Account, including each related disclosure form. The Merchant shall update LUSA of any change in such information and/or Data.
3.9. It has disclosed to LUSA in writing, prior to executing this Agreement, the existence of any past federal or state decrees, orders, or consent agreements, and any pending formal or informal government investigations or prosecutions by the Federal Trade Commission, any other federal or state governmental or regulatory body or agency, or any industry regulatory authority.
3.10. If it becomes involved or named in any action, investigation, complaint or other proceeding by or before any governmental or regulatory authority, or any private party, or its prudential regulator advises it informally or formally that it can no longer use the Platform, Merchant will immediately provide notice to LUSA of such action, investigation, complaint or other proceeding or of such advice, in which event LUSA may terminate this Agreement and Merchant’s access to and use of the Platform immediately and without notice to Merchant. Any delay or failure by LUSA to promptly terminate such access and use shall not constitute a waiver or release of such right of LUSA nor of such breach or failure by Merchant.
3.11. It has obtained and shall maintain throughout the term of this Agreement all necessary permits, licenses, authorizations or other registrations required to conduct its business activities. If it loses or fails timely to renew any such permit, license, authorization or registration, LUSA may terminate this Agreement and Merchant’s access to and use of the Platform immediately and without notice to Merchant. Any delay or failure by LUSA to promptly terminate such access and use shall not constitute a waiver or release of such right of LUSA nor of such breach or failure by Merchant.
3.12. The files, if any, containing Data and/or any other files submitted by Merchant to the Platform shall not contain any malware, spyware or any other malicious code or knowingly breach or circumvent any security measure utilized by LUSA.
3.13. It understands, acknowledges and agrees that LUSA had no part in creating any of the information or Data provided by Merchant and/or the Consumers; LUSA is under no obligation to review or validate the information or Data provided by Merchant and/or the Consumers in any way, nor to comment and/or correct them and the Merchant understands, acknowledges and agrees that it has not relied on any such undertaking. Merchant shall ensure that all Data provided on the Platform by Merchant or any Consumer is accurate and complete. Notwithstanding the provisions of the immediately preceding sentence, LUSA may in its sole discretion review the information or Data provided by Merchant and/or the Consumers and at any time and in its sole discretion, including without limitation, upon an inquiry or request from a Lender or Governmental Authority either (i) request any changes or amendments thereto, with which Merchant undertakes to comply, or (ii) remove the information or Data provided by
Merchant and/or the Consumers from the Platform. The Merchant shall have no claim against LUSA and shall not be entitled to any remedy from LUSA in connection with such actions.
3.14. It understands, acknowledges and agrees that LUSA is not a lender or loan broker, and does not make lending decisions, does not offer or make solicitations to lend, has no involvement with the underwriting of a financial transaction, makes no representation that any Consumer will be approved for a Contract or an Account or that a certain percentage of Consumers will be approved for Contracts or Accounts, and does not have authority as an agent, representative or broker of any Lender to extend credit on behalf of any Lender, and that neither Merchant nor any Consumer shall have any claim against LUSA or be entitled to any remedy from LUSA in connection with any rejection of any Application, denial of any financing or failure by any Lender to fund any previously approved Contract or Account. That LUSA assumes no responsibility as to the accuracy of the Data provided and Merchant agrees to perform its own due diligence as to the Data and any other information provided with respect to
a Consumer and that LUSA. It understands that LUSA will use reasonable efforts to cause one or more Lenders to agree to accept and review Data from the Merchant and its customers provided, however, LUSA makes no representation as to the number of Lenders that may agree to accept the Data from Merchant, or that any Lenders will be interested in reviewing the Data or willing to enter a Contract or open an Account for any Consumer. It understands that a Lender can terminate its participation in the Platform at any time.
3.15. It understands, acknowledges and agrees that LUSA makes no representations or warranties as to and shall not be liable for the quality, accuracy, veracity, completeness, reliability or performance of any Data and/or the Platform, including without limitation any information contained on an Application which was entered by a Consumer, as to any results from Consumer’s and/or Merchant’s use of the Data and/or the Platform, from Lender’s use of the Data, or as to a Lender’s decision whether or not to proceed with a Contract or an Account. It understands, acknowledges and agrees that LUSA is not liable to Merchant for any Consumer decision to forego purchase of any goods or services from Merchant, whether or not such Consumer has completed an Application, entered a Contract with a Lender or opened an Account with a Lender. It understands, acknowledges and agrees (and shall appropriately communicate the same to each Consumer) that LUSA is not liable to Merchant or to any Consumer in
relation to any agreement entered into between them, any actual sale of goods or services by Merchant to Consumer, the quality, workmanship or suitability of any such goods or services or any disputes that may arise in relation to any of the foregoing. It will not make any determination in relation to the sale or provision to (or withholding from) any Consumer of any goods or services (including in relation to the pricing, suitability, type, scope, quality, timing, manner, materials, method of delivery or performance thereof or otherwise) on the basis of the acceptance or rejection of any Application or the execution of any Contract or opening of any Account nor the terms thereof (including any direct or indirect economic or other benefit to such Merchant receivable in relation thereto).
3.16. It understands, acknowledges and agrees that LUSA is not liable for any Consumer that has provided valid contact information but cannot be reached by Lender and/or Merchant.
3.17. It understands, acknowledges and agrees LUSA is not liable for Consumer’s payment of any loan payments once a transaction with Lender has been completed.
3.18. It understands, acknowledges and agrees that LUSA is an internet based marketing firm and that LUSA has no responsibility to review Merchant’s website and is in no way responsible for the actions of the Merchant and/or its use of the Data and/or of the Platform.
3.19. It understands that each Lender that makes financing available to Consumers through the Platform will publish on a page accessible through the Platform (a) its procedures (such Lender’s “Operating Procedures”)relevant to the funding of proceeds of financing pursuant to a Contract or in relation to an Account and relevant to post-closing or post-funding actions in relation to Contracts and Accounts, and (b) any terms and conditions of any such financing that relate to or are applicable to the Merchant and its business and operations or to the goods and services in relation to which such Lender is willing to extend financing. It will have carefully read and considered all information so published by any Lender, and shall, in its sole discretion, determine are the same are acceptable, suitable and appropriate for the purposes of the Merchant prior to the submission of any Application and the completion of any financing transaction through the Platform. It understands,
acknowledges and agrees that LUSA has no responsibility or liability for the establishment or enforcement by any Lender of any such Operating Procedures, terms or conditions or for any other information published by any Lender through the Platform.
3.20. It understands, acknowledges and agrees that LUSA owns and shall at all times exclusively own and retain (i) all Intellectual Property Rights in and to the technology and know-how related to the Platform, the Services and/or any part thereof and LUSA’s other products and solutions; and (ii) all Intellectual Property, results and/or experiences developed, conceived and/or reduced to practice in connection with the Services provided to Merchant and/or Merchant’s use of the Platform or any part thereof. As used herein the term “Intellectual Property” means (i) all ideas, concepts, techniques, inventions, technologies and processes, tools, models, utilities, objects, software (object and source code), code snippets, technical methodologies, programs, program listings, application, data, databases, analysis frameworks, specifications or other technical elements, results and other work product created or developed prior to the date of this Agreement and all modifications,
improvements or changes in or to the above, (ii) any logos, designs, trademarks, trade names and any other marks of LUSA and; and (iii) all components of the Platform and/or the Services, including without limitation, all ideas, concepts, techniques, inventions, technologies and processes and any modifications made to any such components pursuant to feedback or comment from Merchant and/or any Consumer and any enhancements or derivative works created in connection with the Platform and/or the Services.
3.21. It shall not and shall not allow any third party to: (i) challenge the validity of LUSA’s Intellectual Property Rights or impedein any way LUSA’s ability to secure Intellectual Property; (ii) embody any portion of or file any patent application including orrelating to LUSA’s Intellectual Property or ConfidentialInformation, as defined herein (even if it is released to the public at a later stage); (iii) remove, modify or obscure any copyright, trademark or other proprietary notices that appear on or during the use of the Services or the Platform; or (iv) take any action that jeopardizes LUSA’s proprietary rights in any of the Services, the Platform and/or any part thereof.
3.22. It understands, acknowledges and agrees that LUSA shall have no responsibility in respect of any lack of availability of the Services, the Platform, and/or any part thereof resulting from: (i) incorrect or unauthorized use of the Services, the Platform, and/or any part thereof; (ii) any fault in Merchant’s equipment, systems, network or connectivity; or (iii) any failure or reduced performance of the internet or any third party telecommunications system.
3.23. It understands, acknowledges and agrees that LUSA does not guarantee the integrity of data (including but not limited to information and/or Data provided by Merchant and/or Consumer) stored or transmitted via the Services, the Platform, and/or any part thereof or via the internet.
3.24. It understands, acknowledges and agrees that LUSA shall not be liable for the inadvertent disclosure of, or corruption or erasure of data (including but not limited to information and/or Data provided by Merchant and/or Consumer) transmitted or received or stored on the Services, the Platform, and/or any part thereof, except to the extent such disclosure, corruption or erasure can be attributed to a fault of the Platform, or the hardware on which the Platform, and the Data are hosted and stored.
3.25. It understands, acknowledges and agrees that the Data, the Services and/or the Platform involve Intellectual Property Rights belonging to LUSA or its licensors. It shall not and shall not allow any third party to: (i) alter, permit the alteration of, translate, or create any derivative works of or based on the Data, the Services and/or the Platform; (ii) copy, or permit the copying of the Data, the Services and/or the Platform; (iii) take any action that jeopardizes any entity’s proprietary rights in the Data, the Services and/or the Platform; (iv) acquire or seek to acquire any ownership interest in or to the Data, the Services and/or the Platform; (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Data, the Services and/or the Platform; (vi) remove, modify or obscure any copyright, trademark or other proprietary notices that appear on or during the use of the Data, the Services and/or the Platform; (vii) license, sublicense,
sell, transfer, lease, or disclose the Data, the Services and/or the Platform; (viii) use the Data, the Services and/or the Platform in order to build a competitive product or service or build a product using similar ideas, features or functions of the Data, the Services and/or the Platform; (ix) interfere with or disrupt the integrity of the Data, the Services and/or the Platform or the performance thereof; (x) attempt to gain unauthorized access to the Data, the Services and/or the Platform or related systems or networks relate to them; or (xi) use the Data, the Services and/or the Platform in any manner other than as described this Agreement.
3.26. It understands, acknowledges and agrees that it has no right, title or interest in, to or under, any Contract or Account or proceeds of repayment thereof, and that if any Consumer deliberately or accidentally delivers any monies in any form to Merchant in relation to its Contract or Account, Merchant promptly shall forward all such proceeds, in the form received, to Lender in accordance with the Operating Procedures and that all times when any such monies are in the possession or control of Merchant they are held by Merchant in constructive trust for the benefit of the relevant Lender.
3.27. It understands, acknowledges and agrees that LUSA has not made any representation or warranty as to the compliance with applicable Rules by any Lender (in using the Platform, originating or funding loans, enforcing rights and remedies in relation to any Contract or Account or otherwise), nor any representation or warranty as to the compliance with applicable Rules of any loan documents, disclosure statements, Operating Procedures, Program Guidelines or terms or conditions on which any Lender offers to extend credit, approves or denies applications, and that LUSA has and shall have no liability to Merchant or any Consumer in relation to any of the foregoing. It agrees that is shall under no circumstance make any statement, representation or warranty to any Consumer or any regulatory authority to the contrary.
3.28. It understands, acknowledges and agrees that LUSA not responsible for and shall have no liability to Merchant or any Consumer any proceeds of any Contract or Account that is approved or funded by any Lender. It agrees that is shall under no circumstance make any statement, representation or warranty to any Consumer or any regulatory authority to the contrary.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, LUSA MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (I) ANY WARRANTY THAT THE PROVISION OF THE DATA, THE SERVICES AND/OR THE PLATFORM BY LUSA WILL BE UNINTERRUPTED, TIMELY, AVAILABLE, SECURE OR ERROR FREE; (II) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (III) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; (IV) ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE DATA, THE SERVICES AND/OR THE PLATFORM PROVIDED BY LUSA, (V) ANY WARRANTY TO THE QUALITY, ACCURACY, COMPLETENESS, RELIABILITY, CONTENT OR PERFORMANCE OF THE DATA, THE SERVICES AND/OR THE PLATFORM PROVIDED BY LUSA OR (VI) THAT THE DATA, THE SERVICES AND/OR THE PLATFORM PROVIDED BY LUSA WILL MEET THE REQUIREMENTS OF MERCHANT, OR THIRD PARTY. LUSA DOES NOT REPRESENT OR WARRANT THAT DEFECTS WILL BE CORRECTED, OR THAT THE DATA, THE SERVICES AND/OR THE
PLATFORM, OR THE SERVER THAT MAKES THE DATA, THE SERVICES AND/OR THE PLATFORM AVAILABLE TO MERCHANT ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE EXTENT THE ABOVE DISCLAIMERS ARE PROHIBITED BY LAW, THEIR APPLICABILITY SHALL BE LIMITED TO THE MINIMUM PERMITTED BY LAW.
5. Merchant’s Obligations
5.1. Merchant shall provide LUSA and any of its representatives as deemed necessary by LUSA: access to its computer and other systems, in all cases as deemed adequate by LUSA for the provision Services to Merchant hereunder and/or for the receipt of information and/or documentation from Merchant. In the event that any information and/or documentation is to be conveyed from Merchant to LUSA through an FTP server or through another third party, Merchant shall provide such information and/or documentation in a format reasonably requested by LUSA.
5.2. Merchant understands, acknowledges and agrees that in connection with its use of the Platform and/or of the Services and/or in the performance of its obligations under this Agreement it does not need to, it shall not and shall not permit any third party to access LUSA’s computer hardware, servers, software, and other equipment, including without limitation, tools, models, utilities, objects, code snippets, technical methodologies, programs, program listings, analysis frameworks, specifications or other technical elements, controlled by LUSA and used and operated by LUSA to provide the Data, the Platform and/or Services and/or to operate the Platform.
5.3. Merchant understands, acknowledges and agrees that it shall access the LUSA systems, including, without limitation, computer systems, computers, networks, databases, and servers owned, licensed or leased by LUSA, or operated by a third Party on behalf of LUSA (“LUSA Systems”), solely for the use of the Data, the Platform, the Services and/or the provision of information and/or documentation to LUSA under this Agreement, and is limited to those specific LUSA Systems and time periods as are explicitly agreed to by LUSA and Merchant from time to time.
5.4. Merchant shall only connect to LUSA Systems through approved network connections (“Approved Connections”). Merchant shall use an Approved Connection only in accordance with all applicable security and other policies and procedures which LUSA implements and may change from time to time that are provided or communicated to Merchant by LUSA. Merchant shall use its best efforts to prevent all security breaches through the Approved Connections, implement stringent security procedures (including without limitation accessing the LUSA Systems through password protected systems, changing passwords on a regular basis (and no less frequently than every 30 days), and never accessing the LUSA Systems from a shared or public computer, device or network), and shall act immediately to address any non-approved methods of connection, security breach, or exposure to hacking attempts. The right to connect to LY Systems may be revoked at any time.
5.5. Merchant shall ensure that no viruses, Trojan horses, disabling code, malware or similar hostile items are coded or introduced into the LUSA Systems. Merchant agrees that, in the event a virus or similar item is found to have been introduced by Merchant, Merchant shall use commercially reasonable efforts to assist LUSA in every possible way (at Merchant’s sole expense if such introduction is due to a breach of its obligations under this Section) in eliminating them, mitigating their effects and restoring the affected systems to their prior state.
5.6. Merchant shall notify LUSA immediately if it receives a cease and desist, or similar, letter or notice of any investigation of any Contract, Account, financing program or financial product that it knows to be marketed by LUSA or any Lender or that names LUSA or any Lender Merchant knows has executed a Contract or opened an Account for a Consumer. Such notification shall include a copy of the cease and desist letter.
5.7. Merchant shall notify LUSA immediately if it receives a cease and desist, or similar, letter with regard to any copyright, trademark or patent infringement related to or arising from a website or e-mail that includes any information regarding, or hyperlink to, LUSA’s websites, products or services. Such notification shall include a copy of the cease and desist letter.
5.8. Merchant shall notify the appropriate Lender immediately if it receives a cease and desist, or similar, letter with regard to any copyright, trademark or patent infringement related to or arising from a website or e-mail that includes any information regarding, or hyperlink to, such Lender’s websites, products or services. Such notification shall include a copy of the cease and desist letter.
5.9. If a Consumer who has obtained a Contract or opened an Account and has agreed to purchase goods or services from Merchant (i) does not accept delivery or performance thereof, (ii) timely returns the goods to Merchant consistent with Merchant’s published return policy or the terms of the agreement between Merchant and Consumer or (iii) terminates its agreement with Merchant prior to proffer of such goods or performance of such services, Merchant shall promptly refund to Lender the full amount of proceeds of lending funded under such Contract or in relation to such Account in accordance with , and shall otherwise comply with the Operating Procedures specified by such Lender and made available to Merchant through the Platform.
5.10. If proceeds of any Contract or Account are funded to Merchant and subsequently LUSA or the relevant Lender determine that any information supplied by Merchant or the relevant Consumer in or in relation to the relevant Application or related documents or Data that is false, inaccurate or unverifiable, or have committed any fraud in relation to the origination or funding of such Contract or Account, Merchant shall promptly refund the relevant Lenderthe full amount of proceeds of lending funded under such Contract or in relation to such Account in accordance with, and shall otherwise comply with the Operating Procedures specified by such Lender and made available to Merchant through the Platform.
6.1. In consideration for the use of the Platform and/or Services provided to Merchant under this Agreement, if applicable, Merchant shall pay to LUSA the fees set forth on Schedule A.
7. Proceeds to Merchant.
7.1. Merchant agrees that any Lender’s offer to extend credit may be conditioned upon (among other things) Merchant’s acceptance as payment in full for the goods and/or services delivered or rendered by Merchant of a specified percentage (the “Funding Percentage”) of the purchase price for such goods and services specified in the Application and documents relating to any Contract or Account. Merchant understands that the terms and conditions of each Lender’s offer to extend credit, including any applicable Funding Percentage, will be set forth on a webpage accessible through the Platform. Merchant agrees that it will review such page and determine in its sole discretion whether it is willing to accept the Funding Percentage of the purchase price as payment in full for the goods and services sold or provided to any Consumer, and that neither LUSA nor any other person than such Lender establishes such terms or will be liable to Merchant for any such amounts nor any other amounts in
relation to Merchant’s sale or provision of goods and services on such terms. Merchant agrees not to charge or otherwise attempt to collect from a Customer any difference between the amount of such proceeds received by Merchant and the purchase price for goods and services specified in the Application and documents relating to any Contract or Account. In the event of noncompliance with the terms of this section Lender may refuse to fund related proceeds under the relevant Contract or Account and requireMerchant to reimburse Lender amounts previously funded under such Contract or Account or the disputed portion thereof, as applicable, or may withdraw such amounts (plus the amount of any related transfer or transaction fee and any late payment fee) from the Settlement Account or set of such amounts against any future funding due to Merchant under other Contracts or Accounts. Merchant further agrees not to disclose to any Consumer the Funding Percentage, the proposed or actual amount of
proceeds paid by a Lender to Merchant or the difference between such amount of proceeds and the purchase price for goods and services specified in the Application and documents relating to any Contract or Account.
Merchant agrees to indemnify, defend, and hold LUSA, including LUSA affiliates, and its and their respective agents, employees, managers, members, officers, successors or assigns harmless from and against any and all liability, loss, damages, claims or causes of action, including reasonable legal fees and expenses, arising out of or related to (i) any breach or alleged breach of this Agreement by Merchant, its employees, agents, or contractors of any obligations, representations or warranties contained in this Agreement; (ii) any representation or warranty of Merchant being false, misleading, incorrect or incomplete in any material respect, or (iii) the fraud, violation of law, negligence or willful misconduct of Merchant or of any of its employees, agents, or contractors or any third party acting on behalf thereof.
9. Limitation of Liability.
THE PLATFORM, THE DATA, AND THE SERVICES AND ANY SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, LUSA AND ITS AGENTS, EMPLOYEES, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SUCCESSORS AND ASSIGNS, SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGES, INJURIES, ECONOMIC LOSSES, COMMERCIAL LOSSES OR OTHER CASUALTY OF ANY KIND (INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES), OR BY WHOMSOEVER CAUSED, TO THE PERSON OR PROPERTY OF ANYONE ELSE INCLUDING THE MERCHANT, AND/OR ITS RESPECTIVE AGENTS, EMPLOYEES, MANAGERS, MEMBERS, OFFICERS, SUCCESSORS OR ASSIGNS ARISING OUT OF OR RESULTING FROM THIS AGREEMENT OR FOR BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ON ANY STRICT LIABILITY THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR IF SUCH LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN. THE LIABILITY PROVISIONS OF THIS AGREEMENT SHALL SURVIVE ITS EXPIRATION OR TERMINATION UNTIL ALL CLAIMS
CONTEMPLATED BY THESE PROVISIONS ARE FULLY, FINALLY AND ABSOLUTELY BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.
LUSA’s total aggregate liability to Merchant, and/or its respective agents, employees, managers, members, officers, successors or assigns, in respect of all claims, losses or damages, whether based on an action or claim in contract, tort (including negligence), breach of statutory duty, under an indemnity or otherwise, arising out of, or in connection with, this Agreement, will be limited in aggregate to the total amount paid by Merchant under this agreement during the twelve (12) consecutive months preceding the date of the claim.
10. Term and Termination.
10.1. The initial term of the Agreement shall be for one (1) year and shall commence on the Effective Date. Thereafter, the Agreement shall automatically renew for one (1) year periods unless otherwise terminated as set forth herein. Either Party may terminate this Agreement prior to the termination date by providing written notice of termination to the other Party no less than thirty (30) days prior to the proposed termination date. In addition, Merchant agrees to provide LUSA with written notice of not less than thirty (30) days if it is no longer providing Data to LUSA. LUSA may immediately terminate this Agreement in accordance with the provisions of Section 3.10 above. It is expressly agreed by Merchant, and notwithstanding any term herein, that LUSA shall have the right to immediately terminate this Agreement, at LUSA’s sole election, if LUSA determines that the financial consideration received by it in connection with any or all of the Merchant, Customer or Lender, is no longer commercially viable and acceptable, or that any information or terms imposed upon LUSA by any of the Merchant, Customer or Lender as a result of this Agreement are not acceptable to LUSA in its sole and reasonable business judgment. In event of such termination by LUSA, Merchant shall receive written notice of termination and upon delivery of such termination notice to the Merchant, the post-termination requirements set forth in Section 10.2 below shall become immediately effective.
10.2. Following the termination of this Agreement: (i) the license granted in Section 1.2(b) shall terminate; LUSA shall terminate Merchant’s access to the Platform and shall cease providing any Services to Merchant; (ii) LUSA shall prepare and submit a final invoice for Merchant and Merchant shall pay all sums due under the final invoice within seven (7) days of receipt; (iii) Merchant must notify LY of any dispute regarding any invoice within thirty (30) days of receipt of such invoice, otherwise, such invoice shall be deemed undisputed; (iv) by not later than [three (3) business days] from the effective date of the termination or expiration of this Agreement, Merchant must permanently destroy, delete, and/or erase all Data which is in its possession so such Data cannot practicably be accessed, read or reconstructed in any way, (except to the extent and only for as long as it is necessary for Merchant to retain Licensed Data to comply with a current obligation to any
Consumer or to comply with applicable Law). Merchant shall certify such destruction of all Data in writing within two (2) business days of the date of destruction of the Data; (v) each Party must promptly destroy and delete all copies of Confidential Information in its possession so that the Confidential Information cannot practicably be accessed, read or reconstructed in any way and shall certify such destruction of all Confidential Information to the other Party in writing within two (2) business days of the date of destruction of the Confidential Information; and (vi) Sections 2, 4, 6, 7, 9, 10, 11, 12,13 and 13.3 shall survive the termination or expiration of this Agreement.
11. Confidentiality. Non circumvention
11.1. Confidentiality. As used herein, “Confidential Information” shall mean: (i) either Party's proprietary information; (ii) information marked or designated by either Party as confidential; (iii) information otherwise disclosed by either Party in a manner consistent with its confidential nature; (iv) the Data [(which shall be deemed LY’s Confidential Information)]; (v) the terms and conditions of this Agreement; (vi) the Data; and (vii) either Party's information that is conveyed to the other Party, whether or not in written form and whether or not designated as confidential, that is known, or should reasonably be known, by the other Party to be treated as confidential. The Parties acknowledge that, as a result of the performance of each Party’s obligations under this Agreement, one Party (“Disclosing Party”) may disclose Confidential Information to the other Party (“Receiving Party”). Therefore, the Receiving Party agrees that it will make no
disclosure of the Disclosing Party's Confidential Information without obtaining the Disclosing Party's prior written consent. Additionally, the Receiving Party will restrict disclosure of Confidential Information to its employee(s), authorized agent(s) and/or independent contractors to whom disclosure is reasonably required, and such employee(s), authorized agent(s) and/or independent contractor(s) shall be explicitly bound by these confidentiality obligations and will use reasonable care, but not less care than they use with respect to their own information of like character, to prevent disclosure of any Confidential Information. Except as otherwise specified in this Agreement, nothing contained in this Agreement shall be construed as granting or conferring rights by license or otherwise in any Confidential Information disclosed pursuant to this Agreement. This confidentiality provision shall survive any termination of this Agreement for a period of three (3) years thereafter. The
Receiving Party agrees that monetary damages for breach of confidentiality under this provision may not be adequate and that the Disclosing Party shall be further entitled to injunctive relief. Notwithstanding anything contained herein to the contrary, confidentiality provisions shall not apply where the Receiving Party can demonstrate with clear evidence that the information: (a) was previously known to the Receiving Party at the time of disclosure, free of any obligation to keep it confidential; (b) became publicly known through no wrongful act of the Receiving Party; (c) was rightfully received by the Receiving Party from a third party who was not bound under any confidentiality provisions; or (d) was disclosed pursuant to judicial order, requirement of a governmental agency or by operation of law.
11.2. Non circumvention. During the Term of this Agreement for a period of two (2) years thereafter, the Confidential Information of a Disclosing Party shall not be used for the enrichment, directly or indirectly, of any Receiving Party, its affiliates or any third Party, and no Receiving Party or its affiliates shall attempt to exploit commercially the Confidential Information of a Disclosing Party without the express written consent of such Disclosing Party. Specifically, Merchant may not directly enter into any relationship with a Lender the identity of which becomes known to Merchant through the use of the Platform to receive Applications or extend credit or financing to Consumers. In the event that Merchant does enter into an arrangement that such a Lender does receive Applications from Merchant, Merchant agrees to compensate LUSA for each Application submitted at a rate of $ for each Application for the period of time during which this Agreement is in effect and
for a period of three (3) years thereafter.
12. Governing Law; Dispute Resolution.
12.1. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California without giving effect to principles of conflicts of law.
12.2. Dispute Resolution. Any controversy, claim, or dispute between the parties to this Agreement arising out of, in connection with, or in relation to the interpretation, validity, performance or breach of this Agreement shall be resolved to the exclusion of a court of law by binding arbitration in Los Angeles County in accordance with the rules of the American Arbitration Association then in effect.
13. General Terms.
13.1. Except as otherwise provided in this Agreement, any amendment or modification to this Agreement must be in writing and signed by both Parties. This Agreement shall constitute the complete and entire expression of the agreement between the Parties, and shall supersede any and all other agreements, whether written or oral, between the Parties.
13.2. The parties shall at all times be independent contractors with respect to each other in carrying out this Agreement, and nothing herein renders them partners, joint ventures nor employer and employee. Each of the Parties shall be solely responsible for its own employees in connection with performance under this Agreement, and all salary, wages, and benefits owed thereto.
13.3. Neither Party may assign or transfer this Agreement without the prior written consent of the other, which shall not be unreasonably withheld. LUSA may assign or transfer this Agreement at any time to an affiliate or to an entity to whom LUSA is transferring all or substantially all of its assets. Notwithstanding the foregoing, Merchant expressly agrees that LUSA may assign all rights and remedies of LUSA under and in relation to the provisions of Sections 2.1, 3.8, 3.15, 3.19, 3.26, 5.9, 5.10 and 7.1 to any Lender insofar as the same relate to any Contract entered or Account established by such Lender, and that such Lender (or its successors and assigns as maker or owner of such Contract or Account) may directly enforce such rights and remedies as if a party to this Agreement.
13.4. The waiver or failure of either Party to exercise any right provided for in this Agreement will not be deemed a waiver of any further or future rights under this Agreement.
13.5. All notices required by this Agreement shall be in writing and deemed to have been effectively given and received when delivered personally or sent by express courier service. Notices shall be addressed to the individuals and addresses specified in the preamble to this Agreement.
13.6. With the exception of Merchant’s payment obligations, neither Party shall be liable for delay or failure to perform any of its obligations hereunder to the extent that such delay or failure arises from any cause beyond that Party’s reasonable control. Performance times shall be considered extended for a period of time equal to the time lost because of such delay or failure. A Party affected by any such force majeure shall promptly advise the other of the circumstances and shall seek to mitigate the impact of the force majeure as promptly as possible.
13.7. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such provision shall be limited or eliminated to the minimum extent necessary so that the remaining provisions and the Agreement shall continue in full force and effect.
13.8. Unless otherwise specified, the rights and remedies granted to a Party under this Agreement are cumulative and in addition to, not in lieu of, any other rights and remedies which the Party may possess at law or in equity.
13.9. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument.
Annual Membership Fee: Non-Applicable
Access Fee Non-Applicable
*You have the right to cancel the standing payment authorization by notifying us in writing 30 days before your next ACH to the address below. Please make sure the following information is included in your letter, Customer Name (as it appears on the bank account) and reason for cancellation.
15303 Ventura Blvd
Bldg C Suite 850
Sherman Oaks, CA 91403