Merchant User Terms And Conditions
Last Updated February 2018
1. Our Relationship
a. “You,” “your” and “Merchant” refers to the merchant who agrees to these Merchant User Terms and Conditions (“Terms”) and has entered into a Retail Installment Contract Purchase Agreement with an assignee approved for using the LendingPoint Merchant Solutions Internet platform (“Assignee”) for the sale and assignment of retail installment agreements from the retail sales of goods or services to customers of Merchant (“Purchase Agreement”).
b. “We,” and “our” refers to LendingPoint Merchant Solutions.
c. You hereby designate the LendingPoint Merchant Solutions Internet platform as the means by which you will underwrite customer applications for credit that will finance purchases pursuant to retail installment sales contracts (“Contracts”) that meet your credit criteria as provided by you to LendingPoint Merchant Solutions and provide the link or means to submit such Contracts to Assignee for purchase.
d. We host the LendingPoint Merchant Solutions Internet platform to provide origination, underwriting and other services to enable the merchant to provide customers with credit options to purchase goods or services from the merchant (each a “Service” and collectively the “Services”). The LendingPoint Merchant Solutions Internet platform can be accessed at point of sale at your retail location(s) or through your website(s) as approved by LendingPoint Merchant Solutions.
e. By submitting Contracts using the LendingPoint Merchant Solutions Internet platform and by agreeing to Assignee’s purchase of qualified Contracts you agree to these Terms.
2. Contract Approval
a. When you submit a qualifying Contract to Assignee using the LendingPoint Merchant Solutions Internet platform you acknowledge and agree that the Assignee may disclose and transfer the information you submit (i) regarding the consumer retail installment sale underlying the Contract, (ii) the Contract, (iii) your customer and (v) information regarding your business to one or more of the banks, credit unions or other financial institutions to seek approval to subsequently purchase Contracts or portions thereof.
b. As further provided in the Purchase Agreement, you acknowledge and agree that using the LendingPoint Merchant Solutions Internet platform and Services does not guaranty that a Assignee will purchase a Contract from you.
3. License to use the Technology
a. LendingPoint Merchant Solutions grants you a royalty-free, non-transferable and non-exclusive license to use the Intellectual Property during the term of the Purchase Agreement or terminated by LendingPoint Merchant Solutions for the origination, underwriting and transmission of Contracts as provided in the Purchase Agreement. “Intellectual Property” means the software, systems, trademarks and copyrighted material we use in providing the Services. Your right to use the Intellectual Property terminates automatically upon termination of the Purchase Agreement or upon termination of these Terms and Conditions by LendingPoint Merchant Solutions.
b. You acknowledge that you have no rights other than the rights specified in the license above in any Intellectual Property provided by us in connection with our performance of the Services.
4. Merchant Representations
You represent and warrant that (a) you are engaged in legal activities conducted in compliance with all applicable laws, have all necessary licenses and permits to engage in your business and all promotions, sales practices and documents or contracts used in your business comply with applicable laws, and the use of these Services does not violate any licensing or other law, rule or regulation that governs your business (including but not limited to those governing financial services, consumer protection, unfair competition, anti-discrimination, and false advertising); (b) you are not engaged in any consumer fraud or deceptive trade practice and you agree that your products and/or services and any contracts or documents used with customers do not violate any local, State or Federal law, rule or regulation. You will use the Services only to facilitate the purchase of goods and services you offer for sale in the ordinary course of your business and will not submit contracts for any other business or person; (c) you have the authority to transfer all customer and other information to us and such information will be true, complete and accurate and (d) any application for financing and any qualifying Contract will represent a bona fide sale of your goods and or services.
5. Use of Services by You
a. You grant us a limited, non-exclusive, non-transferable license to use your trademarks and logos that you provide to us in connection with the origination, underwriting and transmittal of Contracts. You further agree that we may list you and use your trademarks and logos on the LendingPoint Merchant Solutions Internet platform describing you as a client of LendingPoint Merchant Solutions.
b. You agree to provide prompt notice to us in the event you want to use the Services on additional websites you launch or maintain.
6. Account Information
You must create an account (“Account”) to use the Services. You agree to provide the information requested by us. You agree that any such information you provide will be accurate, complete and correct and you agree to promptly provide updated information if any such information changes. Your Account and the Services may be suspended or terminated if you fail to provide correct information.
When you establish your Account you will be asked to choose a password. We recommend that you change your password frequently and we may require you to change your password from time to time. To prevent unauthorized use of your Account, your confidential information and the confidential information of your customers, you agree to protect and keep confidential your password. If you disclose your password to any person, you assume all risks and losses associated with such disclosure. We are authorized to act on instructions received using your password. The loss, theft or unauthorized use of your password could cause a person to gain access to your Account, your confidential information and the confidential information of your customers and to use that information for fraudulent purposes including identity theft. If you believe your password has been lost or stolen or that unauthorized use of your Account has occurred notify us immediately at 760-517-6452.
You agree that, at our sole discretion, we may contact you about your Account and the Services by email at any email address you provide us or regular mail at any postal address you provide us or by posting on the LendingPoint Merchant Solutions Internet website. You will provide to us any notice required under these Terms to the address indicated on the LendingPoint Merchant Solutions Internet platform.
9. Equipment, Hardware and Software Requirements
To obtain the Services, you need a computer terminal(s) equipped with a web browser that meets our current minimum requirements of 128 bit encryption. You are responsible for obtaining, installing, maintaining and operating all software and hardware or other equipment necessary for you to access and use the Services, including but not limited to an Internet service provider, current web browsers, the best commercially available encryption and anti‑virus and Internet security software (“Systems”). You are responsible for any and all service charges imposed by such Internet service provider and any associated communication service provider charges, including wireless provider charges.
10. Risk of Loss
We will use commercially reasonable efforts to secure the LendingPoint Merchant Solutions Internet platform to prevent access by unauthorized persons and to prevent the introduction of any malicious code, such as a computer virus. However, no security system is failsafe, and despite our efforts the security of the LendingPoint Merchant Solutions Internet platform could be compromised or malicious code could be introduced by third parties. You acknowledge that there are certain security, corruption, transmission error and access availability risks associated with using open networks such as the Internet and you hereby expressly assume such risks.
In the event of a system failure or interruption, your data, including customer information you have submitted, may be lost or destroyed. You assume the responsibility to verify the accuracy and completeness of any information you provide to us that may be affected by the system failure or interruption. We will not be liable for failure to provide access or for interruptions in access to the LendingPoint Merchant Solutions Internet platform due to a system failure or due to other acts or circumstances beyond our control, and you hereby expressly assume such risks.
We are not responsible for any delay, error, problem, damages or other loss you may suffer due to malfunction or misapplication of your Systems, including any equipment you may use to access or communicate with the LendingPoint Merchant Solutions platform, and you hereby expressly assume such risks.
11. Improper Use of LendingPoint Merchant Solutions Internet Platform
You agree not to use the LendingPoint Merchant Solutions Internet platform for any other purpose, including commercial purposes such as co‑branding, linking or reselling, without our prior written consent. You may not copy or distribute any content without our prior written consent. You may not frame any part of the LendingPoint Merchant Solutions Internet platform or Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through our Services.
12. Proprietary Rights and Intellectual Property
a. The content and information on the LendingPoint Merchant Solutions Internet platform are copyrighted by or licensed by us and the unauthorized use, reproduction, linking or distribution of any portion is strictly prohibited. You may not (i) copy, modify or create derivation works based on the LendingPoint Merchant Solutions Internet platform and the Services; or (ii) reverse engineer, decompile or disassemble the Services.
b. You understand and agree you will not mention our name or the names of any of our partners and affiliates that may provide the Services in any of your marketing materials without our prior written consent.
13. Term and Termination
a. The Terms begin on the effective date of the Purchase Agreement and continue until terminated by either you or us as set out below.
b. The Terms terminate automatically without notice upon the termination of the Purchase Agreement.
c. If you wish to terminate this Agreement, you may do so by (i) notifying us at any time in writing; (ii) immediately discontinuing use of the Services and the LendingPoint Merchant Solutions Internet platform; and (iii) permanently removing any and all material related to the Purchase Agreement and the Terms from your website(s) and marketing materials.
d. We may at any time and for any reason without notice suspend or terminate your access to the LendingPoint Merchant Solutions Internet platform, the Services and the Terms. We are not be liable to you or any third party if we exercise this right.
e. Upon the termination of this Agreement the obligations and liabilities of you and us incurred prior to the termination date will survive the termination of these Terms for all purposes. The provisions of the Terms which by their nature continue after termination will survive termination.
14. Relationship of Parties
The parties agree that nothing contained within this Agreement will create any partnership or joint business venture, agency or franchise, sales representative, or employer/employee relationship.
15. Limitation of Liability
YOU AGREE THAT WE AND OUR AFFILIATES, AND ASSIGNEES INCLUDING BANKS, CREDIT UNIONS, SERVICERS, TECHNOLOGY PARTNERS AND FINANCIAL INSTITUTIONS THAT MAY PROVIDE THE SERVICES SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE OF ANY KIND ARISING OUT OF OR RESULTING FROM YOUR USE OF THE SERVICES REGARDLESS OF WHETHER SUCH LIABILITY IS BASED IN TORT, CONTRACT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION A NEGLIGENT ACT. NEITHER WE NOR ANY OF OUR AFFILIATES SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR INTERRUPTION OF BUSINESS), ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR INABILITY TO USE THE SERVICES GENERALLY, OR OTHERWISE IN CONNECTION WITH THE TERMS, REGARDLESS OF WHETHER WE OR ANY OF OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
16. Merchant Indemnification
You agree to indemnify, defend and hold harmless us and our affiliates and their directors, officers, employees, agents, shareholders, partners, members, and associations from and against any and all claims, suits, actions, demands, injuries, liabilities, losses or deficits, damages, judgments, settlements, costs, or expenses arising out of or related in any way to your (a) use of the Services, (b) violation of the Terms, (c) violation of any law or regulation, or (d) violation of any proprietary or privacy right.
All of our information, or the information concerning any Assignee, including pricing, agreements, correspondence, and any information you acquire in relation to the Terms and the Services shall remain strictly confidential and shall not be used, directly or indirectly, by you or any third party for your own business purposes as contemplated by these Terms or those of a Purchase Agreement, and no other.
We reserve the right to modify the Terms at any time in our sole discretion. Should the Terms be modified, we will let you know by either posting the modified Terms on the LendingPoint Merchant Solutions platform or through another communication as provided in accordance with Section 8. Any changes or modifications will be effective on the date provided in the notice. You waive any right you may have to receive specific notice of such changes or modifications. Your continued use of the Services following the sending our or posting of the notice will confirm your acceptance of such changes or modifications.
19. Entire Agreement
The Terms constitute the entire legal agreement between you and us and govern your use of the Services (but excluding any services which we may provide to you under a separate written agreement), and completely replace any prior agreements between you and us in relation to the Services.
If any court of law, having the jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision or provisions will be removed from the Terms without affecting the rest of the Terms. The remaining provisions of the Terms will continue to be valid and enforceable.
21. Governing Law
This Agreement shall be governed by the laws of the State of California without regard to its conflict of law provisions. You and we agree to submit to the exclusive jurisdiction of the courts located within the county of San Diego, California to resolve any legal matter arising from the Terms. Notwithstanding this, you agree that LendingPoint Merchant Solutions shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
22. Electronic Communications
You agree to be bound by any affirmation, assent or agreement you transmit to us, including but not limited to any consent you give to receive communications from us solely through electronic transmission. You agree that, now and in the future when you click on an “I agree,” “I consent” or other similarly worded “button” or entry field with your mouse, keystroke or other computer device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature.