FTL Agreement - OPTIMUS Financing

FTL Agreement

Lender Agreements (2 of 3)

FTL Agreement

Terms of Service(Required)

IN CONSIDERATION of the matters described above, and for the mutual benefits and obligations below, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby represent, warrant and agree as follows:

  1. Definitions:
    1. “Consumer” is any individual or entity with whom Contractor has contracted to provide services.
    2. “The Work” means the equipment, goods, material, or services listed on the financing application Consumer submits to FTL which is represented to FTL as being the equipment, goods, material, or services Contractor is providing to Consumer.
    3. “The Funds” means monies paid to Contractor by FTL based on Consumer’s financing application.
  2. 2. Contractor’s Representations and Warranties:
    1. Contractor states the information contained on the New Contractor Registration Form is correct and complete.
    2. Contractor acknowledges and agrees that it is not acting as FTL’s agent or on behalf of FTL. Contractor shall not make any representation to anyone, including, but not limited to, any Consumer that it is acting on behalf of FTL.
    3. Contractor represents that it is aware of and practices proper lending procedures and, prior to offering any FTL products to Consumer, will view and understand materials provided by FTL regarding offering financing and consumer protection practices. Contractor agrees and acknowledges that it has an independent obligation to practice proper lending procedures and that materials provided by FTL do not in any way absolve Contractor of its obligations.
    4. Contractor agrees that any funding that FTL may provide is only for the Work.
    5. Contractor will not cause any falsehoods or misrepresentations to be submitted on a financing application, including, but not limited to, regarding the scope of Work, the location of the Work, or the Consumer requesting financing.
    6. Contractor acknowledges that FTL expects Contractor to comply with all applicable federal, state, and local laws, ordinances, rules, and regulations with respect to the sale, installation, and performance of the Work by Contractor. FTL expects the Work to be completed in accordance with applicable industry and local standards and best practices.
    7. Contractor will not cause any application for financing to be submitted to FTL if Consumer has any right of rescission, offset, setoff, counterclaim, cooling-off period, claim or defense (collectively, “Defense”).
    8. When Contractor causes an application for financing to be submitted to FTL, it represents to FTL that
      1. Consumer has not asserted any Defense;
      2. The contract between Contractor and Consumer is enforceable and lawful;
      3. All information and statements in the documents submitted to FTL are truthful;
      4. All signatures on the documents submitted to FTL are genuine;
      5. All sales between Contractor and Consumer as well as any related services by Contractor occurred in compliance with all federal, state, and local laws and there were no false, misleading, deceptive, or abusive acts or practices by Contractor in connection with any of the documents or any of the sale transactions;
      6. All documents between Contractor and Consumer contain all terms and notices, and are provided in such formats, as required by all applicable federal, state, and local laws;
      7. At the time of installation, the Work, including any equipment, goods, and materials, were those which the Consumer contracted for, were in good working order, and were not defective;
      8. The any equipment, goods, and materials described in the financing application are free of all liens or other encumbrances at the time the financing application is submitted to FTL;
      9. Contractor has all required licenses, permits, insurance, registrations, and other elements necessary to provide the Work;
      10. Contractor has reviewed a valid form of identification on Customer;
      11. Contractor has no knowledge of any facts not disclosed to FTL that may impair Consumer’s credit;
      12. Contractor provided Consumer full and completed copies of all financing application and Work-related documents in a timely manner and no documents were altered after Consumer’s signature;
      13. Any down payment was made by cash, check or credit card and was properly disclosed in writing to Consumer;
      14. Contractor has not made and will not make any agreement with Consumer to separately finance any portion of the Work or to make any payments for Consumer;
      15. All documents have been signed by an employee of Contractor who is authorized to bind Contractor to the terms therein;
      16. Contractor has not added any finance or loan-related fees onto prices quoted to Consumer nor disclosed that any finance or loan-related fees, such as dealer or discount fees, are included in the amount financed
    9. Financing applications will only be approved when all documents required by FTL are received. The documents required will be in FTL’s sole discretion and can change at any time without prior notice to Contractor.
    10. Contractor agrees to pay fees to FTL. The dollar amount of the fees is in FTL’s sole discretion and is subject to change at any time without prior notice to Contractor.
    11. Contractor agrees to utilize the software prescribed by FTL for submission of financing applications.
    12. Contractor authorizes FTL to share Contractor’s ACH banking information with FTL’s lending partners and affiliates for the purpose of obtaining financing for the Work.
    13. Contractor agrees FTL will not provide financing for Contractor, Contractor’s owner, or any of Contractor’s principals; or for employees or relatives of Contractor, Contractor’s owner, or any of Contractor’s principals (“Restricted Parties”) or for the benefit of any of the Restricted Parties. Contractor agrees it will not cause a financing application to be submitted in the name of or for the benefit of any of the Restricted Parties.
    14. Contractor shall cooperate with FTL to promptly resolve all disputes brought by Consumer.
  3. FTL’s Representations and Warranties:
    1. Upon submission of a financing application by Contractor during business hours, FTL will promptly review the application and provide a response to Contractor regarding whether financing will be provided to Consumer.
    2. The decision of whether to provide financing to Consumer is in FTL’s sole discretion. This Agreement does not obligate FTL to provide financing to any Consumer.
    3. If FTL agrees to provide financing to Consumer, FTL will provide the Funds to Contractor. Funds will be provided by direct deposit (ACH transfer) into the account Contractor has chosen.
    4. The amount of the Funds will be determined by Consumer’s financing application, less fees.
    5. The financing products offered by FTL are in FTL’s sole discretion. FTL may change the financing products available and their terms at any time without prior notice to Contractor.
    6. Submission of Documents: FTL will only accept financing applications submitted and signed electronically through the systems prescribed by FTL. Fax, e-mailed, or hard-copy submissions will not be accepted.
    7. Retention of Documents: Contractor will retain records of the financing options provided to Consumer and will, upon request by FTL, provide to FTL these records.
    8. Return of Funds. If FTL determines, in its sole discretion, that it has paid the amount in error, including, but not limited to, FTL’s determination that Consumer had any right of rescission, offset, setoff, counterclaim, cooling-off period, claim or defense at the time Funds were provided or that Contractor breached this Agreement, FTL shall demand return of the Funds wrongfully paid. Contractor agrees that it will repay the Funds FTL via ACH transaction not more than one (1) business day following FTL’s demand.
    9. No Agency: FTL and Contractor acknowledge that they are not agents for one another and therefore are not bound by any agreements made by one another with third parties unless prior written approval has been given.
    10. Use of FTL Name: Contractor shall not use FTL’s name, logo, trademarks, or trade names, or refer to FTL directly or indirectly, in any advertisement, marketing materials, news release, or any other publication, without prior written consent of FTL. In the event that FTL has granted such written consent, Contractor shall follow all terms and conditions set out by FTL including that Contractor shall state in any such material that Contractor is not acting as an agent of FTL.
    11. Communications: Contractor agrees to receive updates from FTL via e-mail, fax, U.S. mail, or telephone, including via SMS and MMS. Contractor understands and agrees that for the parties’ mutual protection, FTL may electronically record any telephone conversations conducted with FTL without further notice to the parties to such conversations. Contractor acknowledges and consents to the retention of and use of such recordings by FTL. Contractor further agrees that to the extent FTL discloses information that identifies or relates to an individual or household via any of the communication methods mentioned in this paragraph, Contractor will only use the information in furtherance of this Agreement and in furtherance of Contractor’s own obligations to its client/customer. Contractor is responsible for its own compliance with all applicable laws regulating communications, personal information, and data privacy, including providing all necessary notices and obtaining and respecting all consents.
    12. SMS/MMS Communications: As indicated above in Section 9, Contractor agrees that FTL may contact Contractor via SMS/MMS. All SMS/MMS Communications will be transactional messages in furtherance of Contractor and FTL’s relationship and this Agreement, unless the Contractor separately agrees to receive marketing communications from FTL. FTL may record or store these SMS/MMS in furtherance of this Agreement. Contractor hereby consents to receive SMS/MMS messages from FTL, and to FTL’s use, recording, storage, and retention of such messages, including any and all responses Contractor sends to a message initiated or sent by FTL.
    13. Bound Parties: This Agreement is a valid contract between the parties which shall inure and bind Contractor; Contractor’s members, officers, and principals; Contractor’s respective successors and assigns; and any company affiliated with Contractor which may transact business hereunder.
    14. Indemnification: Contractor shall be liable to and agrees to indemnify, defend and hold harmless FTL, its parents, officers, directors, managers, members, employees, and agents (“FTL Parties”) from and against any and all claims, losses, damages, demands, suits, counterclaims, cross claims, or right to setoff, costs, and expenses (including attorney’s fees and court costs, whether or not litigation is commenced) incurred by the FTL Parties arising out of or related to this Agreement or any tortious acts or omissions by Contractor or anyone acting on its behalf (including officers, directors, managers, members, employees, and agents), including any claim brought by any Consumer. This includes, but is not limited to (a) any action by FTL to enforce any provision of the Agreement; (b) any action by FTL to recover the Funds; (c) breach of any of Contractor’s representations, warranties, or covenants under this Agreement; (d) Consumer’s rescission of, or attempt to rescind, part or all of its financing application based on Contractor’s actions; (e) any claim by Consumer against FTL related to Contractor’s actions. Contractor’s liability shall apply to at least: (i) Contractor’s failure to act as required by law in its interactions with Customer, including compliance with all lending laws and regulations; (ii) Contractor’s failure to accurately submit any information to FTL; (iii) Contractor’s failure to provide the Work to Consumer in accordance with the agreement between Contractor and Consumer; and (iv) any claim made against FTL related to the Work, whether product liability, warranty claim, or otherwise. The obligations under this paragraph shall survive any termination of this Agreement.
    15. Fees and Costs: Contractor agrees to pay all reasonable fees and expenses (including attorney’s fees and costs, whether or not litigation is commenced) incurred by or on behalf of the FTL Parties to protect or enforce this Agreement, including but not limited to the actions described in the preceding paragraph. The obligations under this paragraph shall survive any termination of this Agreement.
    16. Governing Law; Jury Waiver; Venue: This Agreement shall be construed in accordance with the laws of the State of Missouri except for the laws regarding conflict of laws. The parties waive any right to a jury trial and agree that the state and federal courts situated in St. Louis County, Missouri shall have exclusive subject matter over all disputes and parties relating to this Agreement. Contractor agrees to submit to personal jurisdiction in Missouri. If, however, Contractor is brought in as a third party by FTL in a suit brought against FTL by a Consumer, Contractor consents to the jurisdiction of the court where the suit is brought.
    17. Amendment: FTL may amend this Agreement at any time. In the event Dealer does not agree to the amended terms, FTL may terminate this Agreement as it deems necessary.
    18. Termination: Either party may terminate this Agreement immediately by giving written notice to the other party. Termination of this Agreement by either party will have no effect on any obligations or any transactions relating to financing issued by FTL to the effective date of termination.
    19. Counterparts: This Agreement may be executed in several counterparts and all so executed shall constitute one Agreement, binding on all the parties hereto even though the parties are not signatories to the original or same counterpart.
    20. Entire Agreement: This Agreement constitutes the entire Agreement between FTL and Contractor and terminates, supersedes, and replaces any prior agreements, written or oral.
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