Florida CAM Help Program.
Program Administrator is the administrator of the Florida CAM Help Program and, among other things, provides administrative, technical and ministerial services to Funding Participants. Contractor agrees to participate in the Florida CAM Help Program in accordance with the terms of this Agreement, including the Operating Instructions, to allow Contractor customers to apply for and, if approved, obtain Loans from a Funding Participant for purchases of eligible Offerings offered by Contractor, which Loans are funded by Funding Participants. Contractor understands that Program Administrator is committed to meeting or exceeding all regulatory requirements that are applicable to the Florida CAM Help Program and that Contractor plays an integral role in helping Program Administrator ensure compliance with all such requirements. Program Administrator enters into this Agreement under delegated authority in its role as Program Administrator for Funding Participants participating in the Florida CAM Help Program.
- Overview of the Contractor’s Obligations and Responsibilities under the Florida CAM Help Program. (a) Contractor’s obligations and responsibilities under the Florida CAM Help Program are detailed in this Agreement and the Operating Instructions, which are available on Program Administrator’s website at https://www.FloridaCAMHelp.com/Contractoragreement or in the Contractor Portal. These obligations and responsibilities include:
(i) ensuring all Contractor’s employees, representatives or agents involved with the Florida CAM Help Program are advised of, and trained regarding, the requirements related to offering the Florida CAM Help Program to Contractor’s customers, and that Contractor’s employees, representatives or agents having sales and finance responsibilities or who market, intake, facilitate or submit a loan application have completed the orientation and all required training related to the Florida CAM Help Program adopted by Funding Participants and provided by Program Administrator within the timeframes directed by Program Administrator;
(ii) promoting the Florida CAM Help Program in a legally-compliant, accurate, complete, unbiased and fair manner, including ensuring that Contractor and its employees, agents and representatives are not engaged in illegal discrimination against consumers when presenting Florida CAM Help Program financing, and that any required rescission notices are provided to consumers as part of the underlying sales contract with the consumer;
(iii) ensuring that Loan proceeds are used only in connection with eligible Offerings;
(iv) taking commercially reasonable measures to prevent fraudulent activity by an Applicant, Borrower or Contractor (including any of its employees, representatives, agents or Contractors) with respect to a loan application, Loan or Loan proceeds, including verifying the identification of each individual representing the entity applying for a Florida CAM Help Program product or using an Access Device, Account or Loan proceeds at the time of a sale of Offerings and ensuring that there is no discrepancy between the documents Contractor relies on to fulfill its obligation to verify the identity of such individual under Section 7 and Section 8 and such individual’s physical appearance or other application information;
(v) fully cooperating with Program Administrator in investigating and remediating Applicant and Borrower escalations, complaints and disputes about Contractor, Offerings, Invoices, Transaction Requests or any transactions involving Contractor, and responding within five Business Days (or such shorter time as required by this Agreement, Program Administrator, applicable law or governmental authority) to any request for information, audit or review related to Contractor’s participation in the Florida CAM Help Program or in connection with the resolution of a dispute involving a Borrower or Applicant;
(vi) limiting Contractor’s discussions with each Borrower and Applicant regarding the Florida CAM Help Program to providing such Borrower or Applicant with approved materials or expressly authorized information, such as approved marketing statements from the Operating Instructions, the telephone number to contact Program Administrator (as an agent of Funding Participants), the relevant Florida CAM Help Program websites, Program Administrator’s mailing address, Florida CAM Help Program loan applications and certain applicable codes or other identification numbers. Such discussions must be conducted in English or Spanish only, provided that if Contractor conducts such discussions in Spanish, Contractor will, during the application process, request or direct each Borrower or Applicant to request a Spanish-language copy of the Borrower’s Loan Documents, and provided further that if such Borrower or Applicant wishes to use a translator during discussion of the Florida CAM Help Program, (A) the translator must be of legal age, (B) Contractor will only speak to the translator in English or Spanish and (C) Contractor will verify and document the identification of each individual serving as a translator;
2. Overview of the Contractor’s Obligations and Responsibilities under the Florida CAM Help Program.
(a) Contractor’s obligations and responsibilities under the Florida CAM Help Program are detailed in this Agreement and the Operating Instructions, which are available on Program Administrator’s website at https://www.FloridaCAMHelp.com/ContractorAgreement or in the Contractor Portal. These obligations and responsibilities include:
(i) ensuring all Contractor’s employees, representatives, or agents involved with the Florida CAM Help Program are advised of, and trained regarding, the requirements related to offering the Program to Contractor’s customers, including that those having sales and finance responsibilities—or who market, intake, facilitate, or submit a loan application—complete the required orientation and training provided by Program Administrator within the directed timeframes;
(ii) promoting the Florida CAM Help Program in a legally compliant, accurate, complete, unbiased, and fair manner, including ensuring that Contractor and its employees, agents, and representatives do not engage in illegal discrimination against consumers when presenting Program financing, and that any required rescission notices are provided to consumers in connection with the underlying sales contract;
(iii) ensuring that Loan proceeds are used solely in connection with eligible Offerings;
(iv) taking commercially reasonable measures to prevent fraudulent activity by an Applicant, Borrower, or Contractor (including any of its employees, representatives, agents, or subcontractors) with respect to a loan application, Loan, or Loan proceeds, including verifying the identification of each individual representing an entity applying for a Florida CAM Help Program product or using an Access Device, Account, or Loan proceeds at the time of a sale of Offerings, and ensuring consistency between the identification documents and the individual’s physical appearance or application information;
(v) fully cooperating with Program Administrator in investigating and remediating any escalations, complaints, or disputes related to Contractor, Offerings, Invoices, Transaction Requests, or any transactions involving Contractor, and responding within five Business Days (or a shorter timeframe as required by this Agreement, Program Administrator, applicable law, or governmental authority) to any request for information, audit, or review;
(vi) limiting discussions with each Borrower and Applicant regarding the Florida CAM Help Program to providing approved materials or expressly authorized information (such as approved marketing statements from the Operating Instructions, the telephone number to contact Program Administrator as an agent of Funding Participants, the relevant Program websites, Program Administrator’s mailing address, Florida CAM Help Program loan applications, and applicable codes or identification numbers). Such discussions must be conducted in English or Spanish only, with the following additional requirements if conducted in Spanish: (A) the translator must be of legal age; (B) Contractor shall communicate with the translator solely in English or Spanish; and (C) Contractor must verify and document the identification of each individual serving as a translator;
(vii) maintaining any information received regarding each Borrower or Applicant—or regarding a Loan—as strictly confidential, regardless of its source (including but not limited to information received from the Borrower, Applicant, Program Administrator, or Funding Participant);
(viii) providing, in a timely manner, to Program Administrator all information relating to Contractor’s participation in the Florida CAM Help Program and regarding any Borrower or Applicant as set forth herein or as otherwise requested by Program Administrator or a Funding Participant. It is understood that Program Administrator and Funding Participants may share this information with the sponsor referring the Contractor to the Florida CAM Help Program (if any) and with the sponsor’s Affiliates;
(ix) with respect to any documents or forms provided to, or to be executed by, a Borrower or Applicant—or which constitute a disclosure required by Program Administrator or under applicable law in connection with the Florida CAM Help Program—using only such documents and forms provided to Contractor or approved in writing by Program Administrator (and only the latest version thereof) and not modifying any such documents or forms without Program Administrator’s prior written consent;
(x) ensuring: (A) that each Applicant or Borrower participates in the submission of any loan application to the Florida CAM Help Program on behalf of the Applicant or Borrower—either by directly inputting information into a loan application or by directly providing such information to the Program via telephone; (B) that each Borrower is aware when Contractor submits any transaction on their Account to the Florida CAM Help Program; and (C) that the Applicant or Borrower has authorized any such submission of a loan application or transaction in accordance with this Agreement and the Operating Instructions;
(xi) ensuring that each of Contractor’s employees, representatives, or agents with sales and finance responsibilities—or those who market, intake, facilitate, or submit a loan application—has his or her own Florida CAM Help Program credential (such as a client portal and/or mobile app login) to access a loan application and does not share such credentials with any other person.
(b) In addition to the foregoing, Contractor shall not:
(i) prepare or disseminate any written materials regarding the Florida CAM Help Program other than those provided or approved in writing by Program Administrator acting on behalf of Funding Participants;
(ii) discuss with an Applicant the likelihood of approval for a Loan;
(iii) provide any misleading, confusing, or incomplete information regarding the Florida CAM Help Program, including details on applicable interest rates or any terms or conditions of a Loan;
(iv) (as further described in Section 5(b)) add any fees (including the Transaction Fee or any interchange/processing fees) to prices charged to Applicants or Borrowers for the application or use of a Loan;
(v) unlawfully discriminate among Applicants or Borrowers;
(vi) ask for or accept any document from a Borrower that includes a statement indicating that the Offerings have been completed or provided to the Borrower’s satisfaction, prior to the actual completion or provision thereof; or
(vii) engage any Contractor that is not properly licensed, in accordance with applicable legal or regulatory requirements, to provide, perform, or deliver Offerings funded, in whole or in part, by a Loan.
(c) In the event that Program Administrator or a Funding Participant determines that Contractor (including, for the avoidance of doubt, any Contractor employee, representative, or agent with sales and finance responsibilities or who markets, intakes, facilitates, or submits a loan application) has failed to comply with this Agreement, Program Administrator may, without notice, immediately suspend Contractor’s (or such employee’s, representative’s, or agent’s) participation in the Florida CAM Help Program and take any other action deemed appropriate, including termination of this Agreement.
3. Overview of Program Administrator’s Obligations and Responsibilities under the Florida CAM Help Program.
Program Administrator, acting on behalf of Funding Participants, will administer the Florida CAM Help Program. A Funding Participant may offer Contractor’s qualified Applicants closed-ended Loans for financing purchases of eligible Offerings offered by Contractor, and Funding Participants will set forth the terms and conditions under which such Loans are extended to Borrowers.
4. Modification.
Program Administrator, acting on behalf of Funding Participants, may modify this Agreement by providing written or electronic notice to Contractor (which may include Program Administrator posting an updated version of this Agreement on the Florida CAM Help Program website and providing written or electronic notice thereof to Contractor). Any such modification by Program Administrator shall be in writing and either signed by an authorized officer of Program Administrator or posted on the Florida CAM Help Program website. Contractor’s continued participation in the Florida CAM Help Program for new loan applications after the effective date of any such modification will constitute Contractor’s acceptance of the modified terms and agreement to be bound by them. If Contractor does not want to accept such modifications, it must refrain from submitting any loan applications subsequent to the effective date of such modifications and must advise Program Administrator in writing of its decision. Notwithstanding the foregoing, except for modifications pursuant to Section 9, modifications to this Agreement that are applicable solely to Contractor individually—and not generally to other participants in the Florida CAM Help Program—shall not be effective unless provided to Contractor in writing and agreed to by Contractor, either in writing or by its continued participation in the Florida CAM Help Program.
5. Promotion of the Florida CAM Help Program.
(a) If Contractor chooses to participate in the Florida CAM Help Program, Contractor agrees to promote the Program in a commercially reasonable manner and in full compliance with this Agreement, the Operating Instructions, and all applicable laws and regulations. Any material referring to or relating to the Florida CAM Help Program—including the fact that Contractor participates in the Program or specific Loan credit terms or credit products Contractor accepts—shall be prepared or furnished by Program Administrator or, if Contractor prepares such materials (only as permitted at Program Administrator’s discretion), those materials must be reviewed and approved by Program Administrator in advance of any use. In all cases, such materials must adhere to and be used in accordance with the applicable marketing guidelines and requirements in the Operating Instructions. This review and approval will be limited solely to Florida CAM Help Program-specific representations and statements and shall not constitute a review or approval of any advertising or solicitation materials for any other purpose or for compliance with any other local, state, or federal laws unrelated to the Florida CAM Help Program.
(b) Contractor shall not, through a surcharge, price increase, or any other means, require any Borrower to pay any fees as a consequence of applying for or using a Loan to pay Contractor. Specifically, Contractor may not charge the Borrower any portion of any charge or fee imposed by the Florida CAM Help Program on Contractor or any interchange/processing fees payable by Contractor in connection with its participation in the Program.
6. Loan Terms and Approval.
(a) Through the Florida CAM Help Program, a Funding Participant may offer Loan(s) to Contractor’s qualified Applicants under a separate Loan Agreement between the Funding Participant and such qualified Applicant. As between the parties to this Agreement, Program Administrator, at the direction and under the control of Funding Participants:
(i) has sole authority to prescribe the terms and conditions of the credit application, the Loan Agreement, and each Loan (including interest rate, maximum amount, and term);
(ii) may prospectively modify such terms and conditions with respect to Loans for which approval is granted after such modifications;
(iii) may at any time change the credit standards without notice to Contractor; and
(iv) may reject or accept loan applications in its sole discretion.
A Funding Participant shall not be obligated to take any action with respect to a Loan, including accepting the loan application or making future credit available to an Applicant or Borrower, and has no obligation to approve any particular loan application or Loan or to approve applications or Loans meeting any particular set of requirements. A Funding Participant may withdraw any previously issued Loan approval prior to funding of the Loan; unless earlier withdrawn, such Loan approvals shall automatically expire at the end of the purchase window for the applicable credit product. Funding Participants may suspend and subsequently restart any of the Loan products offered in connection with the Florida CAM Help Program at any time.
(b) Without limiting any of Contractor’s obligations hereunder, Contractor acknowledges and agrees that:
(i) Funding Participants shall own the Loans and bear the credit risk for them; and
(ii) Contractor shall have no ownership interest in the Loans.
7. Applications.
(a) Contractor agrees to submit all loan applications in accordance with this Agreement and the Operating Instructions, including by ensuring that the Applicant participates in the submission of a loan application, which may include:
(i) having the Applicant directly input information into the Florida CAM Help Program’s electronic loan application and electronically sign the loan application; or
(ii) having the Applicant directly provide such information to the Florida CAM Help Program via telephone as part of a telephonic credit application.
Contractor will use only a loan application form provided or approved by Funding Participants for use in the Florida CAM Help Program and will not use any other third-party financing provider’s loan application in connection with the Florida CAM Help Program. All loan applications submitted pursuant to this Agreement shall be by a natural person for entity, condominium association purposes, unless otherwise authorized in writing by Program Administrator.
(b) Contractor agrees to provide its sales and finance employees—or its employees, representatives, or agents who market, intake, facilitate, or submit a loan application—with the necessary equipment to submit loan applications to the Florida CAM Help Program in accordance with this Agreement and the Operating Instructions.
(c) In addition, Contractor may, with an Applicant’s prior written consent:
(i) market, intake, facilitate, or submit a completed loan application to the Florida CAM Help Program by such means as set forth in the Operating Instructions and subject to the terms hereof; and
(ii) receive and forward the Loan Documents to the Applicant.
(d) With respect to each credit application, Contractor shall:
(i) ensure all information requested on such loan application is complete and legible;
(ii) ensure that each Applicant is aware of and has authorized any loan application submitted to the Florida CAM Help Program, including by obtaining all Applicant signatures or e-signatures, as applicable, on such loan application or on another document demonstrating the Applicant’s informed consent to apply for a Florida CAM Help Program loan;
(iii) verify the identification of each individual applying for credit by obtaining a government-issued photo identification document and/or another identification method authorized in the Operating Instructions; and
(iv) provide all other information requested or required by the Florida CAM Help Program.
(e) In the event Contractor identifies a discrepancy between the documents relied upon to fulfill its obligation under Section 7(d)(iii) and the Applicant’s physical appearance or other application information, Contractor shall not submit a loan application to the Florida CAM Help Program for any such Applicant and shall promptly inform Program Administrator.
(f) In the event that Program Administrator makes available to Contractor an Internet address for Applicants to submit loan applications to the Florida CAM Help Program for review and processing, it will be an address on a commercial site on the World Wide Web accessible by both Contractor and Applicants. As between the parties, Program Administrator shall own, manage, and maintain such Internet site and retain all right, title, and interest in and to it, and Contractor’s only right is to have it made available to Applicants for use in connection with its participation in the Florida CAM Help Program.
(g) In the event that Program Administrator provides or makes available any application programming interface (or similar technology) (“APIs”) to or on behalf of Contractor in connection with the transactions contemplated by this Agreement, Contractor’s use of such APIs shall be governed by the applicable licensing terms set forth in the Operating Instructions or in any other agreement that Program Administrator, in its discretion, enters into with Contractor regarding such APIs.
(h) Contractor acknowledges and agrees that “restricted transactions,” as defined in the Unlawful Internet Gambling Enforcement Act of 2006 and Regulation GG issued thereunder, and all other transactions in the nature of gambling (“Restricted Transactions”) are prohibited from being processed through the Florida CAM Help Program. Contractor agrees that it will not submit Restricted Transactions for processing through the Program. In the event Program Administrator identifies a suspected Restricted Transaction, Program Administrator may, on behalf of Funding Participants, block or otherwise prevent such transaction and seek any other remedies available under this Agreement or otherwise. (i) With respect to each transaction submitted to the Florida CAM Help Program for processing, Contractor agrees to:
(i) submit such transaction for authorization only after confirming that each Borrower has received and agreed to the Invoice and the Loan Documents;
(ii) submit the Transaction Request in accordance with the requirements of the Florida CAM Help Program, including by providing such information as required by Program Administrator—which may include, among other things, the identity of Contractor and each Borrower, Contractor’s identification number, the Borrower’s Account number and/or entity name, the expiration date of the Access Device, the amount and date of the transaction, the total purchase price for the relevant Offerings, and the status of Contractor’s delivery or performance of the relevant Offerings. By submitting the Transaction Request, Contractor warrants the Borrower’s true identity as an authorized user of the Access Device and the accuracy of the information provided;
(iii) create and retain the Invoice relating to such transaction;
(iv) deliver a true and completed copy of the Invoice to the Borrower at the earlier of (a) processing the transaction or (b) the delivery or performance of the Offerings;
(v) ensure that each Borrower is aware of and has authorized the transaction. In connection therewith, Contractor shall obtain the Borrower’s signature on the Invoice or another document evidencing such authorization, compare the signature with the signature panel on the Access Device or the Borrower’s government-issued photo identification document (or as otherwise permitted under the Operating Instructions), and, if the identification is uncertain or if Contractor questions the validity of the Access Device, contact the Florida CAM Help Program authorization center for directions;
(vi) enter the transaction into Contractor’s point‐of‐sale terminal, other applicable device, or an online portal provided by the Florida CAM Help Program; and
(vii) present the Transaction Request to Program Administrator for authorization only upon receiving each Borrower’s express approval (which approval shall be in writing to the extent required by applicable law, the applicable third-party payment network, Contractor’s processor, or as otherwise required by the Florida CAM Help Program). Provided that if the transaction is canceled, if the Offerings are canceled or returned, or if the Borrower does not provide verification to the Florida CAM Help Program as required pursuant to Section 8(c), such Transaction Request shall be subject to decline, chargeback, or refund. The submission of a Transaction Request shall constitute Contractor’s representation, warranty, and covenant that there is a valid Invoice and that the Borrower has expressly approved the transaction in accordance with the terms of this Agreement.
(j) All transactions financed pursuant to this Agreement shall be for entity, condominium association purposes, unless otherwise authorized in writing by Program Administrator.
(k) Offerings purchased by a Borrower that are being shipped or delivered must be shipped or delivered to the Borrower’s physical address unless shipment or delivery to another location is authorized in writing by the Borrower and approved in writing by Program Administrator on behalf of the Funding Participant.
(l) Contractor is only permitted to process through the Florida CAM Help Program payments for Offerings that have not been fully delivered, installed, and completed (each such payment being a “Deposit Payment”) to the extent Contractor is authorized to do so by Program Administrator, in its sole discretion on behalf of the Funding Participants. Such authorization may be changed by Program Administrator at any time, with or without notice to Contractor. If authorized to process Deposit Payments, then, subject to compliance with applicable law, the terms of the Invoice, and the Borrower’s prior express authorization, Contractor is permitted to process Deposit Payments for:
(A) up to the lesser of (1) 20% of the aggregate project amount and (2) the Borrower’s credit limit for such Loan; or
(B) a greater amount as may be approved in writing by Program Administrator on behalf of the Funding Participants.
Contractor may not otherwise process Deposit Payments through the Florida CAM Help Program. Notwithstanding any other provision of this Agreement, if Contractor receives a Deposit Payment with respect to a Borrower and fails to complete all delivery, installation, and other applicable obligations for the relevant Offerings to the Borrower’s satisfaction within 90 days of receiving the initial Deposit Payment, then—if required by Program Administrator in its sole discretion (acting on behalf of Funding Participants)—Contractor shall refund all Deposit Payment amounts for that Borrower, and Program Administrator may initiate an ACH debit for such amounts from the Contractor Account in accordance with Section 13.
(m) Contractor agrees that it will not offer extended product or service warranties or service agreements—whether underwritten by Contractor, an Affiliate of Contractor, or a third party—in conjunction with purchases made by Borrowers without the prior written approval of the Funding Participant, as communicated by Program Administrator. If any extended warranty or service agreement is approved, Contractor further agrees that such agreement shall comply with applicable law and that Contractor will adhere to all obligations set forth therein, regardless of the underwriter.
(n) To facilitate Contractor’s and Borrowers’ participation in the Florida CAM Help Program and the use of their Loans, Program Administrator, at its discretion, may make available to Contractor certain webpages, mobile applications, and/or online portals for purposes such as viewing applicable Borrower information, submitting Transaction Requests, and obtaining related reports. Contractor must ensure that it, as well as each of its employees, agents, and contractors utilizing these tools on its behalf, complies with all policies, procedures, and terms of use established for such webpages, mobile applications, and online portals.
applicable thereto, and Contractor shall be responsible for its employees’, representatives, agents’ and Contractors’ use of such webpages, mobile applications and online portals.
8. Fees.
(a) For each funded Loan, in addition to any fee imposed by the applicable payment network for processing the transaction (which may include a fee imposed by Program Administrator for transactions processed directly through Program Administrator’s payment network), Contractor will pay Program Administrator a transaction fee (“Transaction Fee”) in return for access to the Florida CAM Help Program, including access to the Florida CAM Help Program technology platform to allow Contractor’s Applicants to apply for Loans from Funding Participants. The Transaction Fees and other fees and charges applicable to Contractor are set forth in a Schedule A to this Agreement, which is communicated separately by Program Administrator to Contractor. The initial Schedule A is provided in connection with the Contractor’s enrollment in the Florida CAM Help Program, and, by written notice to Contractor, Program Administrator from time to time may modify Schedule A to reflect changes to the Transaction Fees and the other fees and charges set forth therein, which modifications shall apply to all Loans approved on or after the effective date specified in such notice (or, if no effective date is specified, the first day of the month after which such notice is provided). The Schedule A as in effect from time to time in accordance with this Section 9 is hereby incorporated into this Agreement.
(b) The Transaction Fee is due and payable to Program Administrator upon the funding of a Loan. Contractor shall also pay Program Administrator a fee each month to participate in the Florida CAM Help Program in accordance with Schedule A (unless the aggregate volume of Loan fundings for Borrowers in a particular month satisfies the minimum level specified in Schedule A). In the event that Contractor does not pay the Transaction Fee or any other fees when due, Program Administrator will be entitled to immediately suspend Contractor’s participation in the Florida CAM Help Program without notice, and, in addition to all other rights and remedies under this Agreement, Program Administrator may, on behalf of itself and Funding Participants, assess Contractor such additional charges (such as late payment or returned payment charges) as set forth in Schedule A. In addition, without limiting any other rights or remedies Program Administrator or a Funding Participant may have under this Agreement or by operation of law, if Program Administrator, in its sole discretion, determines that Contractor has offered the Florida CAM Help Program as “second-look” financing to any of its customers, thereby violating the exclusivity requirements contained herein, then Program Administrator, in its sole discretion, may increase the Transaction Fee by an additional 5 percentage points (the “Risk Adjustment”) for all Loan transactions effective upon written notice to Contractor. Program Administrator may also assess Contractor charges related to Borrower or Applicant disputes with respect to which Program Administrator determines Contractor is at fault, as well as charges related to chargebacks and refunds, in each case as set forth in Schedule A.
9. Borrower Payments.
Contractor agrees that the Funding Participant and Program Administrator, on behalf of, and at the direction and under the control of, the Funding Participant, have the sole right to receive payments in regards to a Loan. Contractor agrees not to attempt to collect a Loan unless specifically authorized in writing by the Funding Participant, as communicated by Program Administrator. Contractor agrees to hold in trust for the Funding Participant any payment received by Contractor in respect of such Loan and to deliver such payment to Program Administrator, acting on behalf of the Funding Participant, together with the Borrower’s name, Account number, and any correspondence accompanying the payment, within five days of receipt by Contractor. Contractor agrees that Contractor shall be deemed to have endorsed, in favor of the Funding Participant to which any such payment relates, any Borrower payments by check, money order or other instrument made payable to Contractor that a Borrower presents to Program Administrator, and Contractor hereby authorizes Program Administrator, on behalf of the Funding Participant, to supply such necessary endorsements on behalf of Contractor. Contractor agrees that it shall not, directly or indirectly, make any payment on a Loan on behalf of a Borrower without the prior written approval of Program Administrator, acting on behalf of Funding Participants, and Program Administrator, in its sole discretion, shall have the right to immediately (a) suspend Contractor’s right to submit new funding transactions on approved Loans or submit new loan applications without notice or (b) terminate this Agreement in the event that Contractor fails to comply with this provision.
10. Representations, Warranties and Covenants.
(a) As to each credit application, Transaction Request or other material presented or delivered in connection with the Florida CAM Help Program, and the transaction it evidences, Contractor represents, warrants and covenants the following:
(i) that Contractor has verified the identity of the Applicant or Borrower and that the Applicant or Borrower was of legal age and competent to execute the credit application, Loan Agreement, Invoice and transaction authorization at the time of the execution thereof; (ii) that the credit application, Loan Agreement, Invoice and Transaction Request are bona fide and were actually made and agreed to by each person identified as an Applicant or Borrower; (iii) that each Loan Agreement, Invoice and Transaction Request (A) will arise out of a bona fide sale of Offerings by Contractor and the express consent of Borrower,
(ii) (B) will not involve the use of the Loan for any purpose other than for the purchase of the Offerings that are the subject of the Loan Agreement, Invoice and Transaction Request, which are truly and accurately described therein, are fit and Contractorable for their intended purpose, have been delivered into the possession of the Borrower and any services so described have been performed, and that all installation and other services contemplated by the Offerings (if applicable) have been completed in a proper and workmanlike manner to the Borrower’s complete satisfaction, and (iii) (C) represents Contractor’s satisfactory performance of all of its other obligations to the Borrower in connection with the transaction evidenced by such Transaction Request;
(iii) that Contractor has conveyed full and complete title to the Offerings, if any, to the Borrower; (iv) that such transaction is, in all respects, in compliance with the Operating Instructions, this Agreement, and all laws, rules and regulations of any federal, state or local governmental agency governing the same; (v) that Contractor has no knowledge or notice of any fact, event, issue or circumstance that would impair enforceability or collection of the Loan as against Borrower; (vi) that there are no liens, mortgages, encumbrances or security interests upon the Invoice or the Transaction Request or the rights evidenced by the Invoice or the Transaction Request; (vii) that there are no present or future unvested or unrecorded rights related to such transaction that could give rise to a mechanic’s, materialman’s or laborer’s lien, except to the extent those rights are in favor of Contractor, in which event Contractor agrees not to assert those rights to the detriment of any Funding Participant; (viii) that Borrower has no claim or defense to payment of any amount reflected on such Transaction Request based upon materials or workmanship or any act or omission of Contractor or Contractor’s employees, Contractors, laborers or representatives; (ix) that there have been no representations or warranties made to Borrower other than representations or warranties approved by the Funding Participant, as communicated by Program Administrator, or a third party’s or manufacturer’s standard warranties, and in the event a manufacturer or third party breaches a standard warranty, Contractor will cure such breach within 30 days of notice thereof; (x) that Contractor has not increased the purchase price or added any additional fees as a result of Borrower’s use of the Loan to purchase the Offerings; and (xi) that Contractor has not taken any adverse action against an Applicant or Borrower because the Applicant or Borrower is a member of a protected class, as defined by applicable law, or because the Applicant or Borrower has chosen to use credit to finance the purchase, nor has Contractor engaged in any practice that has or could have an impermissible negative or disparate impact on members of any protected class, including steering Applicants or Borrowers to more expensive or less favorable financing options because of the Applicants’ or Borrowers’ membership in a protected class. would impair enforceability or collection of the Loan as against Borrower; (vi) that there are no liens, mortgages, encumbrances or security interests upon the Invoice or the Transaction Request or the rights evidenced by the Invoice or the Transaction Request; (vii) that there are no present or future unvested or unrecorded rights related to such transaction that could give rise to a mechanic’s, materialman’s or laborer’s lien, except to the extent those rights are in favor of Contractor, in which event Contractor agrees not to assert those rights to the detriment of any Funding Participant; (viii) that Borrower has no claim or defense to payment of any amount reflected on such Transaction Request based upon materials or workmanship or any act or omission of Contractor or Contractor’s employees, Contractors, laborers or representatives; (ix) that there have been no representations or warranties made to Borrower other than representations or warranties approved by the Funding Participant, as communicated by Program Administrator, or a third party’s or manufacturer’s standard warranties, and in the event a manufacturer or third party breaches a standard warranty, Contractor will cure such breach within 30 days of notice thereof; (x) that Contractor has not increased the purchase price or added any additional fees as a result of Borrower’s use of the Loan to purchase the Offerings; and (xi) that Contractor has not taken any adverse action against an Applicant or Borrower because the Applicant or Borrower is a member of a protected class, as defined by applicable law, or because the Applicant or Borrower has chosen to use credit to finance the purchase, nor has Contractor engaged in any practice that has or could have an impermissible negative or disparate impact on members of any protected class, including steering Applicants or Borrowers to more expensive or less favorable financing options because of the Applicants’ or Borrowers’ membership in a protected class.
(a) Contractor represents, warrants and covenants that (i) Contractor 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) Contractor 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 Contractor and the consummation by Contractor of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Contractor and do not contravene any government or contractual restriction applicable to Contractor, (iv) this Agreement has been duly executed and delivered by Contractor (by submission of the Application), the person submitting the Application on behalf of the Contractor has the requisite authority to legally bind Contractor to the terms of this Agreement and this Agreement constitutes a legal, valid and binding obligation of Contractor enforceable against Contractor in accordance with its terms, and (v) the information set forth in the Application is true and correct in all respects and Contractor shall promptly advise Program Administrator in writing if any such information changes or otherwise ceases to be accurate.
(b) Contractor represents, warrants and covenants 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 and warranties made by Contractor’s employees, representatives and agents, as well as those pertaining to tax reporting and tax compliance, tax evasion or the facilitation of tax evasion, and those dealing with bribery, corruption, improper or illegal payments, gifts, gratuities or money laundering, and that Contractor shall take no action which would subject Program Administrator or Funding Participants to penalties under applicable laws, rules and regulations, and that Contractor 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 Florida CAM Help Program and to perform its obligations under this Agreement, each of which remains and shall remain in full force and effect. Contractor represents, warrants and covenants that each Contractor used by Contractor to provide, perform or deliver Offerings funded, in whole or in part, by a Loan has retained and will retain all required licenses, permits, approvals, certifications and the like that are required under applicable law to conduct its business and deliver Offerings, each of which remains and Contractor represents, warrants, and covenants that it has retained all required licenses, permits, approvals, certifications, and similar authorizations necessary under applicable law to conduct its business, deliver Offerings, participate in the Florida CAM Help Program, and perform its obligations under this Agreement, and that each such license, permit, approval, or certification shall remain in full force and effect. Contractor will promptly notify Program Administrator in the event that any such license, permit, approval, or certification (whether for Contractor or any Contractor it employs) ceases to be in full force and effect or if Contractor (or any such Contractor) is subjected to any sanction by a governmental or regulatory authority. Furthermore, Contractor represents, warrants, and covenants that it and any such Contractors will comply with the Operating Instructions as well as the Contractor Program Agreement Compliance Addendum attached hereto.
(d) Third-Party Agreements:
Contractor represents, warrants, and covenants that it will not violate any agreement with third parties relating to the transactions contemplated herein (including, without limitation, with respect to the Invoice) and will promptly advise Program Administrator of any event that may adversely affect its prospects, continued operations, or its ability to satisfy its obligations under any outstanding Invoices.
(e) Use of Third-Party Contractors:
To the extent that Contractor uses any subcontractors or third parties (“Contractors”) to provide, perform, or deliver Offerings funded, in whole or in part, by a Loan:
(i) Contractor represents, warrants, and covenants that it shall maintain and conduct a reasonable and customary contractor/third party management program that includes, without limitation, a due diligence process for reviewing and evaluating such Contractors, as well as an ongoing oversight process (including a complaint management process); and
(ii) Contractor acknowledges and agrees that it shall be fully responsible for the performance of each such Contractor, including any failure by such Contractors to comply with Contractor’s representations, warranties, covenants, or any other obligations under this Agreement—or to comply with any applicable federal, state, or local law, rule, regulation, or ordinance.
(f) Related Contractors:
With respect to any Related Contractor that the Named Contractor seeks to have participate as a Contractor under this Agreement (in accordance with the definition of “Contractor” in Section 42):
(i) The Named Contractor represents, warrants, and covenants that any such Related Contractor is an Affiliate of the Named Contractor, that the Named Contractor has the power and authority to legally bind such Related Contractor to the terms of this Agreement, and that this Agreement constitutes a legal, valid, and binding obligation of such Related Contractor enforceable against it in accordance with its terms; and
(ii) The Named Contractor further agrees to provide written notice to Program Administrator within three Business Days if any Related Contractor ceases to be an Affiliate of the Named Contractor.
11. Authorization for Automatic Direct Deposits (ACH Credits) and Direct Debits (ACH Debits)
(a) Contractor authorizes Program Administrator, on behalf of itself and applicable Funding Participants, to initiate credit entries for amounts that Program Administrator or Funding Participants may owe Contractor or that may otherwise be due to Contractor under this Agreement. Contractor further authorizes Program Administrator (on behalf of itself and Funding Participants) to initiate debit entries—at times determined solely by Program Administrator—for:
(i) any credit entries made in error; or
(ii) any amounts that Contractor owes under this Agreement, including Transaction Fees or other amounts subject to chargebacks or refunds.
All such credit and debit entries shall be made to the bank account identified by Contractor (the “Contractor Account”). Both Contractor and Program Administrator acknowledge that the origination of ACH transactions described herein must comply with all applicable laws and NACHA rules.
(b) The authorizations set forth in Section 11(a) shall remain in effect while any Loan remains outstanding or while Contractor owes any obligation under this Agreement. Contractor must notify Program Administrator within three Business Days of any change to the Contractor Account information (including, but not limited to, the bank or financial institution’s name and address, transit/routing number, or account number). Program Administrator agrees to act upon received written notifications in a timely manner to allow appropriate adjustments by both Program Administrator and the banking institution.
(c) Contractor covenants that it will not object to any ACH debit initiated by Program Administrator in accordance with this Agreement and will not attempt to reverse any such ACH debit. In the event that sufficient funds are not available in the Contractor Account to complete an ACH debit or if the ACH debit cannot otherwise be completed:
(i) Program Administrator shall be entitled to immediately suspend Contractor’s participation in the Florida CAM Help Program without notice and withhold Loan fundings on current and future transactions submitted for processing; and, in its discretion, apply portions of such Loan fundings to satisfy the amounts owed by Contractor; and
(ii) Contractor shall immediately pay the full amount due under this Agreement by wire transfer of immediately available funds to the account specified by Program Administrator.
12. Records
(a) All data transmitted under the Florida CAM Help Program shall be submitted in a medium, form, and format designated by Program Administrator. Any errors in the data or its transmission by Contractor shall be the responsibility of Contractor, while any errors in such data or its transmission by Program Administrator shall be the responsibility of Program Administrator. Electronic transmission shall be the exclusive method utilized by Contractor for transmitting transaction data to the Florida CAM Help Program, except as otherwise provided by Program Administrator.
13. Recordkeeping and Documentation
(a) Contractor shall maintain paper copies (when used) or copies of electronic images of:
– the Borrowers’ authorization to submit loan applications,
– the Transaction Requests,
– the Invoices, and
– any other records pertaining to any Loan or transaction covered by this Agreement,
for such time and in such manner as Program Administrator, acting on behalf of Funding Participants, or any law or regulation, may require—but in no event for less than seven years from the date of the loan application or Transaction Request. Within 10 days (or an earlier period as required by Program Administrator) after receipt of a request from Program Administrator, Contractor shall provide the following documents:
(i) the Borrower’s authorization for a loan application,
(ii) the Transaction Request,
(iii) the Invoice or other transaction records (including evidence of an Applicant’s or Borrower’s express consent to submit a loan application or transaction), and
(iv) any other documentary evidence available to Contractor and reasonably requested by Program Administrator for any of the following purposes:
– to satisfy applicable law or respond to questions, complaints, lawsuits, counterclaims, or claims concerning Loans or requests from Borrowers or regulatory authorities;
– to provide information in connection with Program Administrator’s pursuit (at the direction and under the control of Funding Participants) of bad debt tax refunds, deductions, credits, or audit offsets (including providing copies of Contractor’s state sales and use tax returns);
– to ensure Contractor’s compliance with this Agreement; or
– to enforce any rights that a Funding Participant or Program Administrator may have against Contractor or a Borrower, including in litigation, collection efforts, or bankruptcy proceedings.
Contractor further agrees to cooperate with any inquiry or investigation by Program Administrator regarding Contractor’s compliance with the terms of this Agreement or with applicable laws and regulations related to this Agreement, Contractor’s participation in the Florida CAM Help Program, or Offerings funded (in whole or in part) by a Loan.
(b) Contractor agrees to permit Program Administrator, at the direction and under the control of Funding Participants, to examine—upon reasonable notice—Contractor’s books and records concerning its participation in the Florida CAM Help Program or any loan application or transaction that gives rise to an Invoice, Transaction Request, or Loan. Contractor shall provide Program Administrator with any further information that may reasonably be required concerning Contractor’s participation in the Florida CAM Help Program or any loan application or transaction.
– Contractor authorizes Program Administrator, at the direction and under the control of Funding Participants, to obtain credit reports regarding Contractor and, to the extent permitted by law, to obtain credit reports for each principal, partner, or owner of Contractor for the purpose of qualifying and evaluating Contractor’s business for continued participation in the Florida CAM Help Program.
– Contractor agrees that such credit reports may be obtained now and in the future to evaluate Contractor’s retention and participation in the Program.
– Upon request, Contractor shall provide a copy of its most recent financial statements—including balance sheets, income and retained earnings statements, cash flow statements, and any accompanying notes—in reasonable detail and prepared in accordance with generally accepted accounting principles.
(c) Contractor will provide Program 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).
14. Operating Instructions
(a) Contractor shall satisfy all requirements designated in any Operating Instructions or as otherwise may be required from time to time by Program Administrator (acting on behalf of Funding Participants) and communicated to Contractor. The terms of the Operating Instructions are incorporated herein by reference. In the event of any inconsistency between the Operating Instructions (or any other requirements) and this Agreement, this Agreement shall govern (unless otherwise expressly provided in the Operating Instructions).
(b) Notwithstanding the notice provisions in this Agreement, Contractor agrees that Program Administrator may post the Operating Instructions on the Florida CAM Help Program website and may modify them from time to time by providing written or electronic notice to Contractor. Contractor further agrees that it has an ongoing obligation to check the website on a monthly basis for any updates or changes to the Operating Instructions.
15. Indemnification; Related Matters
(a) Contractor shall indemnify, defend (at Contractor’s sole expense and with counsel reasonably acceptable to Program Administrator, acting on behalf of and under the direction and control of Funding Participants), and hold harmless Program Administrator and any Funding Participant (and their respective officers, directors, shareholders, members, partners, managers, employees, representatives, and agents)—each a “Florida CAM Help Program Indemnified Person”—from and against any and all losses, claims, investigations, litigation, proceedings, liabilities, damages, administrative charges, and expenses (including all legal and other expenses incurred in connection with any investigation, settlement, compromise, or satisfaction) (collectively, a “Loss”) directly or indirectly arising out of or related to:
(i) any breach by Contractor or its employees, subcontractors, representatives, or agents of any representation, warranty, covenant, or other obligation contained in this Agreement—including the Contractor Program Agreement Compliance Addendum attached hereto;
(ii) any failure by Contractor or its employees, subcontractors, representatives, or agents to comply with any applicable federal, state, or local law, rule, regulation, or ordinance;
(iii) any negligence, fraud, error (whether negligent or not), omission, or misconduct of Contractor, its employees, subcontractors, representatives, or agents;
(iv) Contractor’s or its employees’, subcontractors’, representatives’, or agents’ failure to perform any of Contractor’s obligations or to discharge any of its responsibilities to any person, including but not limited to failure to pay Transaction Fees when due;
(v) any defect in any Offerings sold, provided, performed, or delivered by Contractor or its employees, subcontractors, representatives, or agents—or any breach of any express or implied warranty in connection therewith; and
(vi) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Contractor or its subcontractors, representatives, or agents;
Provided, however, that Contractor shall have no obligation or liability under this Section 15(a) to the extent that a Loss results solely from the gross negligence or willful misconduct of a Florida CAM Help Program Indemnified Person.
(b) Contractor agrees that if it or any of its employees, subcontractors, representatives, or agents breaches any representation, warranty, or covenant contained herein—or if Program Administrator or a Funding Participant determines that a Borrower has asserted any valid claim or defense arising out of any transaction evidenced by any credit application, Loan Agreement, Invoice, or Transaction Request, or cancels any such transaction—then Contractor will, on demand, refund the amount of any Loan affected (plus any finance or other charges related thereto). Contractor further agrees to indemnify and hold harmless the Florida CAM Help Program Indemnified Persons for any and all breaches of warranties, plus for any damages and costs (including attorneys’ fees) incurred as a result. Program Administrator, either on its own behalf or on behalf of Funding Participants (as applicable), may deduct any amounts owed by Contractor under this paragraph or any other provision of this Agreement from any amount due to Contractor. In those instances where Contractor has reimbursed, indemnified, or held harmless any Florida CAM Help Program Indemnified Person—or where Program Administrator has deducted such amounts from any sums owed to Contractor—Contractor shall have the rights specified in Section 12(b)(v), subject to the limitations contained therein.
(c) Program Administrator shall indemnify, defend (at Program Administrator’s sole expense and with counsel reasonably acceptable to Contractor), and hold harmless Contractor and its officers, directors, shareholders, members, partners, managers, employees, representatives, and agents (each, a “Contractor Indemnified Person”) from and against any Loss directly or indirectly arising out of:
(i) the gross negligence or willful misconduct of Program Administrator; or
(ii) Program Administrator’s failure to comply with the terms of this Agreement or with any applicable federal, state, or local law, rule, regulation, or ordinance;
Provided that Program Administrator shall have no obligation or liability under this Section 15(c) to the extent that a Loss results solely from the gross negligence or willful misconduct of a Contractor Indemnified Person.
(d) In the event that any Florida CAM Help Program Indemnified Person or Contractor Indemnified Person receives any claim, demand, or is subject to any suit or proceeding in connection with which a claim may be made under this Section 15, the indemnified party shall promptly provide written notice thereof to the indemnifying party. The indemnifying party shall have the right to participate in the settlement or defense of such claim, demand, suit, or proceeding. Failure by the indemnified party to provide timely notice shall not preclude indemnification, except to the extent that it materially and adversely affects the defense thereof. In any case, the indemnifying and indemnified parties shall cooperate, at no cost to the indemnified party, in the settlement or defense of any such claim or proceeding.
(e) For as long as any Florida CAM Help Program Indemnified Person is actively contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand arising out of:
(i) any transaction contemplated under this Agreement; or
(ii) any fact, situation, condition, or event related to Contractor or any Applicant, Borrower, or customer of Contractor,
Contractor shall cooperate fully with such Florida CAM Help Program Indemnified Person and its counsel, including by making available any necessary personnel, providing testimony, and allowing reasonable access to its books and records (with copies to be provided as necessary), all at Contractor’s sole expense.
16. Reserve the Right to Cancel
If:
(a) Program Administrator, acting under the direction and control of Funding Participants, determines that:
(i) Contractor’s financial condition has deteriorated or is, in the sole discretion of Program Administrator, unacceptable;
(ii) Contractor is in breach of this Agreement;
(iii) the Florida CAM Help Program has experienced unusual levels of disputes or complaints from Borrowers or third parties (including complaints from regulatory authorities) relating to Contractor; or
(iv) the number of Transaction Requests submitted by Contractor deviates substantially from historical trends;
or
(b) Program Administrator becomes aware of any other fact, event, or circumstance related to Contractor’s performance suggesting that Contractor is unable to maintain a high level of quality workmanship, then Program Administrator reserves the right to cancel Contractor’s participation in the Florida CAM Help Program.
17. Insurance
During the term of this Agreement—and thereafter for as long as Contractor has any obligations with respect to the Florida CAM Help Program—Contractor shall, at its own expense, maintain insurance in such amounts and against such risks as is customary for businesses of a comparable size in the industry in which Contractor operates. Such insurance coverage shall be issued by a carrier rated “A VIII” or higher by A.M. Best or by a carrier that is otherwise reasonably acceptable to Program Administrator (acting on behalf of, and at the direction and under the control of, Funding Participants), and such acceptance will not be unreasonably withheld. If requested by Program Administrator or Funding Participants, Program Administrator and Funding Participants shall be named as additional insureds on each policy. Additionally, if requested by Program Administrator acting on behalf of Funding Participants, Contractor shall provide a certificate of insurance evidencing such coverage and any renewals thereof. Contractor shall notify Program Administrator within 15 days if any required insurance policy is cancelled, not renewed, or materially modified.
18. Merger and Integration
Except as specifically stated otherwise herein, this Agreement—together with the Contractor Program Agreement Compliance Addendum attached hereto and the Operating Instructions—constitutes the entire understanding between Program Administrator and Contractor relating to the subject matter hereof, and all prior understandings, whether written or oral, are superseded by this Agreement and the Operating Instructions. Notwithstanding the foregoing:
(a) Program Administrator and Contractor may, at their discretion, from time to time enter into an addendum, side letter, or other written agreement that sets forth certain modifications or additional terms for this Agreement; and
(b) any such addendum, side letter, or other written agreement that was previously entered into by Program Administrator and Contractor prior to the date that this Agreement is updated by Program Administrator shall remain in effect in accordance with its terms. (In interpreting such documents, all provisions shall be construed so as to give effect, to the greatest extent possible, to the intentions of the parties.)
This Agreement may not be modified, amended, waived, or supplemented except as provided herein. All exhibits, schedules, addendums, and documents or instruments delivered pursuant to any provision hereof are expressly made a part of this Agreement as if fully set forth herein.
19. Information Security
(a)
Contractor shall not disclose and shall take all commercially reasonable measures to protect Borrower Information—including any nonpublic personal information (as defined in the Gramm-Leach-Bliley Act, its implementing regulations, and similar laws and regulations)—from disclosure to (i) any third party or (ii) any employee, officer, shareholder, member, partner, director, manager, agent, or representative of Contractor who is not engaged in the implementation and execution of the Florida CAM Help Program and who does not have a need to know such information for the performance of Contractor’s obligations under this Agreement. Contractor shall not retain, in any format (electronic or otherwise), any Borrower Information beyond that required by this Agreement. Without limiting the foregoing, if Contractor permits individuals to submit personally identifying information via the Internet, Contractor shall adopt and maintain a comprehensive privacy policy regarding its handling of such information, and such policy shall be made available on Contractor’s Internet website(s).
(b)
Contractor shall keep confidential and not disclose to any person the information, software, systems, and data that Contractor receives from Program Administrator or from any other source relating to the Florida CAM Help Program and matters subject to this Agreement. Contractor shall use, and cause to be used, such information solely for the purpose of performing its obligations hereunder. Notwithstanding the foregoing, Contractor may disclose such information, including Borrower Information, to its employees, officers, shareholders, members, partners, directors, managers, agents, subcontractors, and representatives who are engaged in the implementation and execution of the Florida CAM Help Program and who are informed of the confidentiality obligations and use limitations set forth herein. Contractor shall remain responsible for any failure of any such person to comply with these confidentiality obligations.
(c)
Program Administrator shall keep confidential and not disclose to any person any information that it receives from Contractor that Contractor designates as confidential, except (i) to Funding Participants or to the employees, officers, shareholders, members, partners, directors, managers, agents, or representatives of Program Administrator, its subsidiaries, Affiliates, or designees who are engaged in the implementation and execution of the Florida CAM Help Program and have been informed of the confidentiality obligations and use limitations hereunder, and (ii) as permitted by this Agreement. Notwithstanding the foregoing, nothing in this Agreement shall limit the rights of Program Administrator, Funding Participants, or their respective personnel (including employees, officers, shareholders, members, partners, directors, managers, agents, or representatives) to:
- (i) report information regarding Borrowers to consumer and commercial credit reporting agencies and credit bureaus, to the extent permitted by the Loan Documents, other agreements with Borrowers, or applicable law;
- (ii) share Borrower Information with third-party service providers in the ordinary course of business for purposes of administering the Florida CAM Help Program;
- (iii) disclose Borrower Information (or portions thereof) to actual or potential third-party lenders that are bound by customary confidentiality obligations;
- (iv) disclose information reasonably necessary to effectuate the sale or assignment of a Loan (or any part thereof or any interest therein);
- (v) use or disclose information for the purposes of conducting or improving the Florida CAM Help Program or other related programs; or
- (vi) use or disclose information as otherwise required by applicable law or governmental authority.
(d)
Contractor and, on behalf of Funding Participants, Program Administrator each agree that they have developed, implemented, and will maintain effective information security policies and procedures at all times as contemplated by this Agreement. Such policies and procedures shall include administrative, technical, and physical safeguards designed to:
(i) ensure the security and confidentiality of Borrower Information;
(ii) protect against anticipated threats or hazards to the security or integrity of Borrower Information;
(iii) protect against unauthorized access to or use of Borrower Information; and
(iv) ensure the proper disposal of Borrower Information.
All personnel handling Borrower Information shall be appropriately trained in these information security policies and procedures. Each party shall regularly audit and review its information security practices and systems to ensure continued effectiveness and make adjustments as necessary in light of changing technology, customer information systems, or emerging threats or hazards.
(e)
Contractor shall promptly notify Program Administrator of any unauthorized access to Borrower Information or any breach in the security measures or systems meant to protect such information. Contractor shall take prompt and appropriate corrective action to prevent further unauthorized access or to cure the breach, and shall fully cooperate with Program Administrator in investigating the breach. In addition, Contractor shall provide any required notices regarding the breach to affected parties in accordance with applicable law and the terms of this Agreement.
For all purposes, including, but not limited to, the provisions of Section 25, each party is responsible for the actions of its employees. In the event the employment of an employee of Contractor is terminated, Contractor will take reasonable steps to ensure that such former employee no longer has access to the Florida CAM Help Program systems (including changing any passwords necessary to access such information or system or any confidential information relating to, or arising from, the Florida CAM Help Program).
1. Notices.
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 Contractor with respect to which Program Administrator has received an indication the e- mail was not actually delivered to such Contractor. For purposes of this Section 32, Saturdays, Sundays and federal holidays shall be considered non-Business Days. All notices to Program Administrator and a Funding Participant hereunder shall be sent to the address set forth below or to such other address, fax number or e-mail address as Program Administrator may advise Contractor in writing. Notices to Contractor shall be sent to Contractor’s postal or street address, fax number or e-mail address set forth in the Application or such other address, fax number or e-mail address as Contractor may advise Program Administrator in writing.
If to Program Administrator: Main Source Capital, Corp.
C/O Florida CAM Help
3105 NW 107 Ave Suite 400
Doral, FL 33172
Attention: Florida CAM Help General Counsel
2. Execution.
This Agreement is executed through Contractor’s submission of the Application, which is an enforceable electronic signature of Contractor, and shall be deemed an original. Modifications to this Agreement shall be adopted in the manner described in Section 4 and Section 9, as applicable.
3. Marks.
Contractor hereby grants Program Administrator, on behalf of itself and Funding Participants, a nonexclusive license to use its name, trademarks, logos and other marks in connection with the administration and operation of the Florida CAM Help Program during and after the term of this Agreement.
4. Press Release.
Contractor agrees not to issue any announcement concerning the Florida CAM Help Program or Contractor’s relationship with Program Administrator or any Funding Participant in a press release or other similar communication to the general public without Program Administrator’s prior written consent.
5. Call Monitoring.
With respect to any calls the Program Administrator may make to the Contractor or the Contractor may make to the Program Administrator, both parties acknowledge and agree that such calls may be recorded or monitored for the purposes of:
- Ensuring quality assurance and training purposes.
- Addressing any disputes, misunderstandings, or operational issues.
- Enhancing program delivery and improving communication protocols.
Both parties agree to comply with all applicable laws and regulations regarding the recording or monitoring of such calls. The Program Administrator will ensure that proper notice is given before recording or monitoring any communication.
20. Employee Responsibility
For all purposes, including, but not limited to, the provisions of Section 25, each party is responsible for the actions of its employees. In the event that a Contractor employee’s employment is terminated, Contractor shall take reasonable steps to ensure that such former employee no longer has access to the Florida CAM Help Program systems. This includes changing any passwords necessary to access such systems or any confidential information relating to or arising from the Florida CAM Help Program.
21. Notices
All demands, notices, and communications under this Agreement shall be in writing and shall be deemed to have been duly given:
(a) three Business Days from the date of mailing via regular first-class U.S. mail;
(b) one Business Day from the date of mailing using a commercial overnight carrier (with proof of delivery);
(c) on the Business Day when sent by facsimile (provided that a date and time confirmation sheet verifies successful transmission); or
(d) on the Business Day when sent by e-mail, provided that notice shall not be deemed duly given if Program Administrator receives an indication that the e-mail was not delivered to Contractor.
For the purposes of this Section, Saturdays, Sundays, and federal holidays shall be considered non-Business Days. All notices to Program Administrator and any Funding Participant shall be sent to the address below or to such other address, fax number, or e-mail address as Program Administrator may specify in writing. Notices to Contractor shall be sent to Contractor’s postal or street address, fax number, or e-mail address as set forth in the Application or as subsequently advised in writing.
If to Program Administrator:
Florida CAM Help Program
C/O Main Source Capital, Corp.
8950 SW 74 Ct Suite 2201
Miami, FL 33156
Attention: Florida CAM Help General Counsel
22. Execution
This Agreement is executed through Contractor’s submission of the Application, which constitutes an enforceable electronic signature of Contractor and shall be deemed an original. Any modifications to this Agreement shall be adopted in the manner described in Section 4 and Section 9, as applicable.
23. Marks
Contractor hereby grants Program Administrator, on behalf of itself and Funding Participants, a nonexclusive license to use Contractor’s name, trademarks, logos, and other marks in connection with the administration and operation of the Florida CAM Help Program during, and after, the term of this Agreement.
24. Press Release
Contractor agrees not to issue any announcement concerning the Florida CAM Help Program or its relationship with Program Administrator or any Funding Participant in a press release or any similar communication to the general public without obtaining Program Administrator’s prior written consent.
25. Call Monitoring
With respect to any calls that Program Administrator may make to Contractor, or that Contractor may make to Program Administrator, Contractor acknowledges that such calls may be monitored or recorded by Program Administrator for quality assurance or other purposes.
26. Damages; Attorneys’ Fees
CONTRACTOR SHALL BE LIABLE TO FLORIDA CAM HELP PROGRAM INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY FLORIDA CAM HELP PROGRAM INDEMNIFIED PERSON MAY BRING AGAINST CONTRACTOR (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 FLORIDA CAM HELP INDEMNIFIED PERSON BE LIABLE TO CONTRACTOR 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.
27. Jurisdiction
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 MIAMI-DADE COUNTY, FLORIDA OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA, 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).
29. Further Assurances
Each party hereto agrees to execute all additional documents and instruments and to do all further things as the other party may reasonably request in order to give effect to and consummate the transactions contemplated hereby.
30. Construction
(a) For purposes of this Agreement, whenever the context requires, the singular number includes the plural, and vice versa; the masculine gender includes the feminine and neuter genders; the feminine gender includes the masculine and neuter genders; and the neuter gender includes the masculine and feminine genders.
(b) The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(c) As used in this Agreement, the words “include” and “including,” and variations thereof, shall not be deemed to be terms of limitation but rather shall be deemed to be followed by the phrase “without limitation.”
(d) Except as otherwise indicated, all references in this Agreement to “Sections,” “Exhibits,” and “Schedules” are intended to refer to sections of this Agreement and exhibits or schedules attached hereto.
(e) All terms defined in this Agreement shall have the defined meanings when used in any document made or delivered pursuant hereto unless otherwise defined therein.
(f) Any agreement, instrument, or statute defined or referred to herein—or in any agreement or instrument referred to herein—means such agreement, instrument, or statute as from time to time amended, modified, or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and with reference to all attachments thereto and instruments incorporated therein.
(g) The word “or,” when used in this Agreement, is not exclusive.
31. Definitions
For purposes of this Agreement, the following terms shall have the meanings set forth below:
(a) “Access Device”
Means a card, Loan Agreement, or other item which may display an Account number issued to a Borrower for use in connection with the Florida CAM Help Program to request funds approved by the Borrower to be disbursed to Contractor on behalf of such Borrower by a Funding Participant, in order to pay Contractor for Offerings.
(b) “Account”
Means a Borrower’s Loan account with the Florida CAM Help Program. An Account will have a unique identification number assigned by the Florida CAM Help Program or the applicable payment card network to a Loan.
(c) “Affiliate”
Means any person or entity that, directly or indirectly, controls, is controlled by, or is under common control with, Contractor—whether through the ownership of voting shares, by contract, or otherwise. For purposes of this definition, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity.
(d) “Agreement”
Means this Florida CAM Help Contractor Program Agreement, as modified or amended from time to time in accordance with its terms.
(e) “Applicant”
Means an actual or prospective applicant or co‑applicant for a Loan.
(f) “Application”
Means the Florida CAM Help Program Application for Contractors.
(g) “Borrower”
Means an Applicant entity who has applied for, and has been approved for, a Loan.
(h) “Borrower Information”
Means any personal information about any Applicant or Borrower received in connection with a Loan, credit application, Transaction Request, or transaction—whether included in a credit application; obtained through the use of the Account or Access Device; received from the Florida CAM Help Program; or otherwise received by Contractor in connection with its participation in the Program. This includes, without limitation, the Applicant’s or Borrower’s name, address, date of birth, and Loan information.
(i) “Business Day”
Means any day that is not a Saturday, a Sunday, or a day on which banks are required or authorized to be closed in Atlanta, Georgia.
(j) “Contractors”
Means any contractors, subcontractors, or other third parties engaged by or on behalf of Contractor to provide, perform, or deliver any aspect of Offerings.
(k) “Funding Participants”
Means the financial institutions and other persons holding title and/or economic rights to loans originated through the Florida CAM Help Program. A Funding Participant may be an Affiliate of Program Administrator.
(l) “Florida CAM Help Program”
Means the lending program administered by Program Administrator on behalf of Funding Participants that make commercial loans available to customers of Contractors in connection with their purchases of goods, services, or merchandise from Contractors.
(m) “Florida CAM Help Program Indemnified Person”
Has the meaning set forth in Section 15(a) of this Agreement.
(n) “Invoice”
Means evidence—whether in paper or electronic form—of a sale of Offerings purchased from Contractor by a Borrower. Such evidence shall include a description, in sufficient detail, of all Offerings purchased to identify the date of the transaction, the entire amount due (including any applicable taxes), and shall otherwise comply with applicable law.
(o) “Loan”
Means a loan made by a Funding Participant to a Borrower, created pursuant to the Florida CAM Help Program, which the Borrower applies for in order to pay for purchases of Offerings from Contractor.
(p) “Loan Agreement”
Means the written agreement between a Funding Participant and a Borrower containing the terms and conditions of a Loan.
(q) “Loan Documents”
Means the Loan Agreement, the associated Truth-in-Lending Act disclosures, and any other documentation or communications from a Funding Participant (including documentation regarding online Borrower accounts and describing the rights of Program Administrator, acting on behalf of Funding Participants, to collect from past due Borrowers).
(r) “Loss”
Has the meaning set forth in Section 15(a) of this Agreement.
(s) “Contractor”
Means:
(i) the person named as Contractor in the Application (the “Named Contractor”), and
(ii) any other person that meets all of the following criteria (each, a “Related Contractor”):
(A) such other person is an Affiliate of the Named Contractor;
(B) the Named Contractor has requested, and Program Administrator has agreed, that such other person be permitted to participate under this Agreement as a “Contractor”;
(C) the Named Contractor and such other person have provided to Program Administrator all documents and information requested for the purposes of evaluating such other person’s participation in the Florida CAM Help Program; and
(D) such other person has been approved by Program Administrator, in its discretion, for participation in the Florida CAM Help Program under this Agreement;
*Provided, however, that (i) the Named Contractor and all Related Contractors shall be jointly and severally liable for any and all obligations under this Agreement, including for any breach by the Named Contractor or any Related Contractor, and (ii) if a Related Contractor ceases to be an Affiliate of the Named Contractor, then such Related Contractor will immediately cease to be a “Contractor” for purposes of this Agreement, with all rights under this Agreement terminating immediately without further action (provided that such termination does not affect the rights of any party to recover for breaches occurring or matters relating to Loans originated prior to termination, nor relieve the Named Contractor or any Related Contractor from its obligations incurred prior to such termination). For purposes of Section 15(a) and Section 25(b) regarding Contractor’s obligation to provide indemnification for particular Losses, references to “Contractor” with respect to an entity that has five or fewer direct or indirect owners as of the date of the initial event giving rise to such Losses shall expressly include all persons who, directly or indirectly, have an ownership interest in Contractor. By participating in the Florida CAM Help Program, Contractor represents, warrants, and covenants that all such persons have been informed of Contractor’s entry into this Agreement and that all necessary authorizations and approvals for their inclusion have been obtained.
(t) “Contractor Indemnified Person”
Has the meaning set forth in Section 15(c) of this Agreement.
(u) “Offerings”
Means any goods, services, or merchandise that Contractor offers, sells, distributes, provides, or installs or that are offered, sold, distributed, provided, or installed on behalf of Contractor; provided that Offerings do not include:
(i) real property;
(ii) gift cards; or
(iii) any other goods, services, or merchandise designated by Program Administrator as not eligible for the Florida CAM Help Program in the Operating Instructions or otherwise in a notice provided to Contractor. In addition, Offerings shall not include any transaction where the proceeds of a Loan are used as a down payment on other financings or any cash-out or other transaction that results in cash being disbursed to the Borrower.