Merchant Platform Agreement
This Merchant Platform Agreement (the “Agreement”) sets forth the terms and conditions between the natural person, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization or other entity (the “Merchant”) entering into this Agreement and FinMkt, Inc®., a Delaware corporation, together with its Affiliates (“Platform Administrator”) which provides administrative services to certain federally insured financial institutions and other persons holding title and/or economic rights to loans, revolving lines of credit, or other financial products (“Financing Products”) originated through the FinMkt® Platform (herein referred to as “Lending Partner(s)”). This Agreement governs Merchant’s use of a lending platform administered by Platform Administrator that makes Financing Products available to customers of merchants in connection with their purchases of goods or services from Merchants (the “FinMkt® Platform”).
Platform Administrator is the administrator of the FinMkt® Platform and provides administrative services to Lending Partners. Merchant agrees to participate in the FinMkt® Platform in accordance with the terms of this Agreement, including any instructions or procedures (including those of applicable Lending Partners) that Platform Administrator communicates to Merchant and updates from time to time (the “Operating Instructions”), to allow an individual customer of a Merchant whose name is on the application and is approved for a Lending Partner’s Financing Product(s) (herein referred to as “Customer” or “Customers”) to obtain Financing Products from a Lending Partner for purchases of eligible goods or services that Merchant offers, sells, distributes, provides or installs or that are offered, sold, distributed, provided or installed on behalf of Merchant (“Offerings”), which Financing Products are funded by Lending Partners. The financial terms, including any discounts and fees applicable to Merchants relating to specific Financing Products offered by Lending Partners, will be disclosed to Merchant on a FinMkt® Program rate sheet (“Rate Sheet”) which will be made available to Merchant directly or through the Merchant Portal on the Platform Administrator’s website. The parties agree that Platform Administrator is required to comply with all legal and regulatory requirements that are applicable to the FinMkt® Platform and Merchant agrees to play an integral role in helping Platform Administrator ensure compliance with all such requirements.
Merchant’s Obligations and Responsibilities under the FinMkt® Platform.
(a) All of Merchant’s obligations and responsibilities under the FinMkt® Platform are detailed in this Agreement, applicable Rate Sheets and all Operating Instructions, which will be made available to Merchant directly or through the Merchant Portal on the Platform Administrator’s website. To the extent that any requirement within this Agreement conflicts with a Lending Partner’s Terms and Conditions, the Lending Partner’s Terms and Conditions shall prevail. These obligations and responsibilities are as follows:
- Implementing and using such procedures and systems as reasonably required by Lending Partners for processing consumer applications and shall provide Customer with all documents, disclosures and other materials required by the Operating Instructions at all Merchant locations and on all websites;
- Enabling electronically-executed Customer documentation to be provided to Lending Partners in accordance with its instructions and otherwise provide such information and complete such actions necessary to establish Customer accounts;
- Responding within five business days, which is any day except any Saturday, any Sunday, any day which is a federal legal holiday in the United States or any day on which banking institutions in the State of New York are authorized or required by law or other governmental action to close (“Business Day”), or such shorter time as required by this Agreement, to any request for information, audit or review related to Merchant’s participation in the FinMkt® Platform;
- Maintaining any information Merchant receives regarding each Customer or prospective Customer (in such capacities) or a Financing Product as strictly confidential;
- Acknowledging that Lending Partner, acting on its own behalf, shall have complete discretion to approve or decline for approval a consumer application; and,
- Authorizing the Platform Administrator to obtain credit reports and other public record information with respect to Merchant and, to the extent permitted by law, all of Merchant’s applicable principals, partners or owners, for the purpose of qualifying Merchant’s business for participation in the FinMkt® Platform and for evaluating Merchant’s business for continued participation in the FinMkt® Platform. Merchant also authorizes Platform Administrator to provide to Lending Partners all information obtained directly from Merchant or from third parties that is used to determine eligibility to participate on the FinMkt® Platform.
- Consenting to Platform Administrator debiting any applicable fees due to Platform Administrator as contained in the Rate Sheet from Merchant’s account at or near the time of disbursement of loan proceeds from the Lending Partner to the Merchant and, in the event Platform Administrator is not able to debit such fees from Merchant’s account, remitting any payment relating to fees or amounts due under any Rate Sheet to Platform Administrator within 14 days of invoice from Platform Administrator.
- Providing consent to Platform Administrator to submit applications on behalf of Merchant to apply for eligibility with any Participating Lenders that require a separate application in addition to the application to participate on the FinMkt® Platform.
(b) In the event that Platform Administrator or a Lending Partner believes Merchant has failed to comply with this Agreement, or that of a Lending Partner, where applicable, Platform Administrator may suspend Merchant’s participation in the FinMkt® Platform and take such other action as it deems appropriate, including terminating all agreements with Merchant.
Platform Administrator’s Obligations and Responsibilities under the FinMkt® Platform.
Platform Administrator will administer the FinMkt® Platform. A Lending Partner shall be entitled to offer Merchant’s qualified customers Financing Products for the purpose of financing purchases of eligible Offerings offered by Merchant. Lending Partners will enter into a separate written agreement between a Lending Partner and a Customer containing the terms and conditions of a Financing Product (the “Financing Product Agreement”) under which Financing Products are extended to Customer(s).
Platform Administrator may modify this Agreement by providing written or electronic notice to Merchant. Merchant’s continued participation in the FinMkt® Platform for new credit applications after the effective date of any such modification will constitute Merchant’s acceptance of the modified terms and Merchant’s agreement to be bound by them. If Merchant does not want to accept such modifications, it must not submit any credit applications subsequent to such effective date and must advise Platform Administrator in writing of its decision. Notwithstanding the foregoing, modifications to this Agreement that are applicable only to Merchant and not to other participants in the FinMkt® Platform shall not be effective unless provided to Merchant in writing and agreed to by Merchant in writing; provided that its continued participation in the FinMkt® Platform shall be deemed to be such an agreement by Merchant and shall be binding hereunder.
Financing Product Terms and Approval.
(a) Through the FinMkt® Platform, a Lending Partner may offer Financing Products(s) to Merchant’s qualified Customers under a Financing Product Agreement.
(b) Lending Partners shall own the Financing Products (and any applicable associated rights) and shall bear the credit risk for the Financing Products. All parties agree that Merchant shall have no ownership interest in the Financing Products (other than in respect of any purchase and sale of an installment contract originated by the Merchant)
Merchant agrees to submit all credit applications in accordance with this Agreement, at the written direction of Lending Partners, and any Lending Partner’s Terms and Conditions that may be executed separately from this Agreement.
Eligible Sales Transactions.
Once a Financing Product is approved by a Lending Partner, Merchant must obtain evidence of a sale, either in paper or electronic form, of Offerings purchased from Merchant by a Customer and shall include any and all information required by this Agreement (the “Purchase Request”) to be authorized by the Financing Product Customer through the FinMkt® Platform’s Merchant Portal as and to the extent directed by Platform Administrator; provided, however, in order to be eligible to process transactions through the FinMkt® Platform’s Merchant Portal, Merchant must satisfy the relevant qualifications therefor and comply with the applicable Terms and Conditions of the Lending Partner. Within 10 days, or such earlier time as may be reasonably required by Program Administrator, of receipt of Program Administrator’s request, Merchant shall provide to Program Administrator the Purchase Request and/or other transaction records and any other documentary evidence available to Merchant and reasonably requested by Program Administrator. Any Purchase Request that is not authorized by the Customer, Platform Administrator, or Lending Partners within the aforementioned time period will be declined. If a transaction authorization is granted, the transaction will be funded by a Lending Partner. Neither Platform Administrator nor such Lending Partner shall be responsible to Merchant, however, for any delay in funding a transaction caused by a merchant processor or otherwise.
Representations and Warranties.
(a) Merchant represents and warrants that (i) Merchant is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has all requisite power and authority to carry on its business as presently conducted and is duly qualified or licensed to do business and is in good standing (where such concept is recognized under applicable law) in each jurisdiction where the nature of its business or the ownership or operation of its properties makes such qualification or licensing necessary, (ii) Merchant has all requisite power and authority to execute and deliver, and perform its obligations under, this Agreement and to consummate the transactions contemplated hereby, (iii) the execution, delivery and performance of this Agreement by Merchant and the consummation by Merchant of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Merchant and do not contravene any government or contractual restriction applicable to Merchant, and (iv) this Agreement has been duly executed and delivered by Merchant and, assuming the due authorization, execution and delivery by Platform Administrator, which may be done electronically, constitutes a legal, valid and binding obligation of Merchant enforceable against Merchant in accordance with its terms.
(b) Merchant represents and warrants that it is in compliance with, and will continue to comply with, all applicable laws, rules and regulations, including those relating to privacy and data security and to its sale of Offerings, point-of-sale practices and representations made by Merchant’s employees and representatives and that Merchant has retained and will retain all required licenses, permits, approvals, certifications and the like that are required under applicable law to conduct its business, to deliver Offerings, to participate in the FinMkt® Platform and to perform its obligations under this Agreement, and any Lending Partner’s Terms and Conditions, each of which remains and shall remain in full force and effect. Merchant represents and warrants that it will comply with the Merchant Platform Agreement the Lending Partner’s Terms and Conditions, where applicable.
(c) Merchant represents and warrants that it will not materially breach any agreement it has with third parties (including, for the avoidance of doubt, those not involved in any way in the transactions contemplated by this Agreement) and will advise Platform Administrator immediately of any event that shall or may reasonably be expected to adversely affect its prospects, solvency, or continued operations
(a) Merchant shall maintain Purchase Requests and invoices, contracts or agreements the Merchant may have directly with Customer, and other records pertaining to any transaction covered by this Agreement for such time and in such manner as Platform Administrator or any law or regulation may require, but in no event less than seven years from the date of the credit application or Purchase Request.
(b) Merchant agrees to permit Platform Administrator, at the direction and under the supervision of Lending Partners, to examine, upon reasonable notice, Merchant’s books and records concerning Merchant’s participation in the FinMkt® Platform or any credit application or transaction giving rise to any Purchase Request or Financing Product and to provide Platform Administrator with such further information as may reasonably be required concerning Merchant’s participation in the FinMkt® Platform or any credit application or transaction.
(c) Merchant will provide Platform Administrator with all original or electronically reproducible copies of documents required to be retained under this Agreement upon request within five Business Days, or such shorter time as required by this Agreement.
(a) Merchant shall satisfy all other requirements designated in any Operating Instructions or as otherwise may be requested in writing from time to time by Platform Administrator and communicated to Merchant. The terms of the Operating Instructions are incorporated by reference into this Agreement. In the event there is any inconsistency between any Operating Instructions and this Agreement, this Agreement shall govern.
(b) Merchant agrees that Platform Administrator may post the Operating Instructions and applicable Rate Sheet on the FinMkt® Platform website and that doing so will constitute legally binding notice thereof to Merchant. Merchant agrees that it has an ongoing obligation to check the website, not less than monthly, for any updates or changes to the Operating Instructions and applicable Rate Sheet.
(b) Merchant shall promptly notify Platform Administrator of any unauthorized access to Customer Information or any breach in security measures or systems for the protection of Customer Information and take appropriate action to prevent further unauthorized access or cure such breach. Merchant shall fully indemnify Platform Administrator for any such security or unauthorized access event and shall cooperate with Platform Administrator with respect to its investigation or inquiry as to any such unauthorized access or breach, provide any notices regarding such unauthorized access or breach to appropriate law enforcement agencies and government regulatory authorities, affected applicants and customers as Platform Administrator, in its sole discretion, deems appropriate, and pay all expenses related thereto.
Merchant shall keep confidential and not disclose to any person (except to employees, officers, shareholders, members, partners, directors, managers or other representatives of Merchant who are engaged in the implementation and execution of the FinMkt® Program) all information, software, systems and data that Merchant receives from Platform Administrator or from any other source relating to the FinMkt® Program and matters that are subject to the terms of this Agreement and shall use, and cause to be used, such information solely for the purposes of the performance of Merchant’s obligations under the terms of this Agreement.
Term, Suspension and Termination.
(a) This Agreement shall be effective on the date of Platform Administrator’s notice of Merchant’s approval to participate in the FinMkt® Platform and shall remain effective until either party gives the other party written notice of its decision to terminate this Agreement. The termination of this Agreement shall not affect the rights of either party to recover for breaches occurring (or with respect to matters relating to Financing Products originated) prior thereto or with respect to provisions of this Agreement that by the nature of their terms continue after termination or survive by operation or law or as otherwise specified herein
(b) Platform Administrator and Merchant may elect to terminate, or suspend for any time period, this agreement, without cause at any time for any reason by providing a minimum of 60 days’ prior written notice to the other Party.
(a) Merchant may not assign this Agreement without the prior written consent of Platform Administrator. Any purported assignment without such consent shall be void.
(b) Platform Administrator may assign this Agreement in whole or in part at any time to any person in accordance with applicable law.
During the term of this Agreement and thereafter for so long as Merchant has any obligations with respect to the FinMkt® Platform, Merchant shall maintain at its sole expense, insurance in such amount and against such risks as is customary for businesses of a comparable size in the industry in which Merchant operates.
Merger and Integration.
Except as specifically stated otherwise herein, this Agreement, together with the Operating Instructions, sets forth the entire understanding of Platform Administrator and Merchant relating to the subject matter hereof, and all prior understandings, written or oral, are superseded by this Agreement and the Operating Instructions. This Agreement may not be modified, amended, waived or supplemented except as provided herein. All exhibits, schedules and addendums hereto and any documents or instruments delivered pursuant to any provision hereof are expressly made a part of this Agreement as fully as though completely set forth herein.
Merchant Obligations Unaffected.
Merchant’s obligations under this Agreement are not affected by any settlement, extension, forbearance or variation in terms that Platform Administrator, at the direction of Lending Partners, may grant in connection with any Financing Product or by the release of the obligations of any Customer by a court or by operation of law.
Indemnification; Related Matters.
Merchant shall indemnify, defend (at Merchant’s sole expense and with counsel reasonably acceptable to Platform Administrator), and hold harmless Platform Administrator and any Lending Partner that funds or owns a Financing Product (or the economic rights thereto) to a customer of Merchant (and their respective officers, advisors, consultants, directors, shareholders, members, partners, managers, employees, representatives and agents) (each a “FinMkt® Platform Indemnified Person”) from and against any and all losses, claims, investigations, litigation, proceedings, liabilities, damages, administrative charges and expenses (including attorneys’ fees) of any kind whatsoever (collectively a “Loss”) directly or indirectly arising out of or related to Merchant’s breach of any obligation owed to Platform Administrator or any third party, including:. (i) breach of any representation, warranty or covenant of Merchant contained in this Agreement and any Lending Partner’s Terms and Conditions; (ii) failure of Merchant to comply with any applicable federal, state or local law, rule, regulation or ordinance; (iii) any Loss sustained by or threatened against any FinMkt® Platform Indemnified Person attributable in whole or in part to negligence, fraud, error (whether negligent or not), omission or misconduct of Merchant, its employees, subcontractors, representatives or agents; (iv) any Loss sustained by or threatened against any FinMkt® Platform Indemnified Person by reason of, or attributable in whole or in part to, Merchant’s failure to perform any of its obligations, or discharge any of its responsibilities, to any person, including failure to pay Transaction Fees when due; (v) any defect in any Offerings sold or provided by Merchant or any breach of any express or implied warranty in connection with such Offerings; and (vi) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Merchant; provided that Merchant shall have no obligations or liability under this Section 19 to the extent a Loss results solely from the gross negligence or willful misconduct of a FinMkt® Platform Indemnified Person. Merchant further agrees to reimburse each FinMkt® Platform Indemnified Person upon demand for all legal and other expenses (including expenses related to investigation, settlement, compromise or satisfaction) incurred by any such FinMkt® Platform Indemnified Person in connection with any of the foregoing.
Nonwaiver and Extensions.
The parties shall not by any act, delay, omission or otherwise be deemed to have waived any rights or remedies hereunder. Each party agrees that the other party’s failure to enforce any of its rights under this Agreement shall not affect any other right or the same right in any other instance.
Ownership of FinMkt® Platform.
Neither Merchant nor any parent, subsidiary or other person or entity controlling, controlled by or under common control Merchant (“Affiliate”) shall by virtue of this Agreement secure any title to or other ownership interest in any elements of the FinMkt® Platform, including the Operating Instructions, written specifications, training materials, programs, systems, screens or any documentation or materials relating thereto, which are Platform Administrator’s or any Lending Partner’s exclusive property. Merchant agrees to use the elements of the FinMkt® Platform and information about the FinMkt® Platform only for the purpose of enabling Merchant to use the FinMkt® Platform provided under this Agreement and for no other purpose.
Rights of Persons Not a Party.
Except as expressly provided herein, this Agreement shall not create any rights on the part of any person not a party hereto, whether as a third-party beneficiary or otherwise.
Governing Law; Severability.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to the conflicts of laws provisions thereof. If any provision of this Agreement is found to be illegal, unenforceable or contrary to applicable law, such provision shall be deemed ineffective without invalidating the remaining provisions hereof and this Agreement may be reformed giving the effect to the greatest extent possible to the intentions of the parties as reflected by the ineffective provision.
This Agreement does not (and shall not be construed to) establish a partnership, joint venture, agency relationship or other form of business association between Merchant and Platform Administrator or any Lending Partner. Platform Administrator and Merchant are independent contractors, and neither party shall have the authority to communicate on behalf of, or commit or bind the other part in any way on any matter.
Actions of Employees.
Each party is responsible for the actions of its employees. In the event employment of an employee is terminated, the party that employed such former employee will take reasonable steps to ensure that such former employee no longer has access to the FinMkt® Platform systems (including changing any passwords necessary to access such information or system or any confidential information relating to, or arising from, the FinMkt® Platform).
All demands, notices and communications hereunder shall be in writing. Notices shall be and deemed to have been duly given (a) three Business Days from the date of mailing by regular first class U.S. mail; (b) one Business Day from the date of mailing by a commercial overnight carrier (providing proof of delivery); (c) the Business Day on which notice is sent by facsimile with a date and time confirmation sheet that the fax went through to the other party; or (d) the Business Day on which notice is sent by e-mail, provided that notice shall not be deemed to have been duly given to any Merchant with respect to which Platform Administrator has received an indication the e- mail was not actually delivered to such Merchant. All notices to Platform Administrator and a Lending Partner hereunder shall be sent to the address set forth below or to such other address, fax number or e-mail address as Platform Administrator may advise Merchant in writing. Notices to Merchant shall be sent to Merchant’s postal or street address, fax number or e-mail address set forth in the Merchant FinMkt® Platform Application or such other address, fax number or e-mail address as Merchant may advise Platform Administrator in writing.
If to Platform Administrator:
222 5th Avenue, 5th Floor
New York, NY 10001
Attention: FinMkt Legal
This Agreement, through execution of the Application, may be executed by facsimile or some other enforceable electronic signature, which shall be deemed an original.
Merchant hereby grants Platform Administrator, on behalf of itself and Lending Partners, a nonexclusive license to use its name, trademarks, logos and other marks in connection with the administration and operation of the FinMkt® Platform during and after the term of this Agreement.
Merchant agrees not to issue any announcement concerning the FinMkt® Platform or Merchant’s relationship with Platform Administrator or any Lending Partner in a press release or other similar communication to the general public without Platform Administrator’s prior written consent.
With respect to any calls Platform Administrator may make to Merchant or Merchant may make to Platform Administrator, Merchant acknowledges that such calls may be monitored or recorded by Platform Administrator for quality assurance or other lawful purposes.
DAMAGES; ATTORNEYS’ FEES.
MERCHANT SHALL BE LIABLE TO FinMkt® PLATFORM INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY FinMkt® PLATFORM INDEMNIFIED PERSON MAY BRING AGAINST MERCHANT (INCLUDING ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES AND OTHER EXPENSES OF ANY KIND WHATSOEVER). TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY FINMKT INDEMNIFIED PERSON BE LIABLE TO MERCHANT OR ANY OTHER PERSON FOR ANY GENERAL, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR COVER DAMAGES, INCLUDING LOSS OF PROFIT, LOSS OF PERSONAL PROPERTY, OR ANY OTHER SIMILAR DAMAGE OR LOSS.
ANY SUIT, COUNTERCLAIM, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, MUST BE BROUGHT BY EITHER PARTY EXCLUSIVELY IN THE STATE OR SUPERIOR COURT OF NEW YORK, NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, AND THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY APPELLATE COURTS THEREOF FOR THE PURPOSE OF ANY SUCH SUIT, COUNTERCLAIM, ACTION OR PROCEEDING OR JUDGMENT THEREON (IT BEING UNDERSTOOD THAT SUCH CONSENT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS WAIVES ANY RIGHT TO SUBMIT ANY DISPUTES HEREUNDER TO ANY COURTS OTHER THAN THOSE ABOVE).
WAIVER OF JURY TRIAL; NO CLASS ACTION.
FinMkt® PLATFORM INDEMNIFIED PERSONS AND MERCHANT INDEMNIFIED PERSONS HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, ANY RELATED DOCUMENT OR UNDER ANY OTHER DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREE THAT ANY SUCH ACTION, SUIT, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR ENTERING INTO THE AGREEMENT. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HERETO AGREES THAT ANY SUCH PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION.
Each party hereto agrees to execute all such additional documents and instruments and to do all such further things as the other party hereto may reasonably request in order to give effect to and consummate the transactions contemplated hereby.
The parties agree that this Agreement may be executed only by each party's electronic agreement in lieu of handwritten or electronic signatures, and such agreement shall have the same force and effect as such signatures.