This Retail Installment Sales Contract Purchase Agreement governs the terms of the purchase of Retail Installment Sales Contracts by Cherry Technologies, Inc., a California corporation (“Buyer”), and any merchant that sells such Contracts to Buyer (“Seller”).
Effective Date: This Agreement is effective as of September 30, 2019, and may be superseded as provided below.
1. Definitions. The following definitions and, as applicable, the substantive provisions therein, shall apply to this Agreement.
(a) “Agreement” shall mean this Retail Installment Paper Purchase Agreement as originally executed or, if later amended or supplemented, then as so amended or supplemented.
(b) “Contract” shall mean a written agreement between Seller and a Customer, in a form acceptable to Customer, pursuant to which the Customer purchases a Unit from Seller that is offered to Customer pursuant to this Agreement.
(c) “Customer” shall mean the purchaser, or collectively, the purchasers, of the Goods Sold pursuant to a Contract.
(d) “Goods Sold” shall mean the goods or services provided to a Customer by Seller pursuant to a Contract.
2. Purchase of Credit Sale Contracts.
(a) Purchase of Contracts. Buyer may purchase and Seller may sell Contracts. Buyer shall not ever be under any obligation to purchase any Contracts from Seller nor is Seller under any obligation to offer any Contracts to Buyer. This Agreement shall cover the purchase of any Contract offered by Seller to Buyer and accepted for purchase by Buyer and the parties’ respective obligations to each other with respect to the Contract. The purchase of a Contract shall occur upon Buyer’s receipt of the confirmation by Seller of the conclusion of the retail installment sales process with the Customer. Buyer’s purchase of a Contract includes an assignment by Seller to Buyer of Seller’s security interest in the Goods Sold and all of Seller’s rights the Contract.
(b) Contract Documentation. With respect to any Contract that Seller wishes Buyer to purchase hereunder, Seller shall work through the flow set forth in Buyer’s app and provide all such additional information as Buyer may request from Seller.
(c) Payment of the Purchase Price. The purchase price of a Contract shall be as agreed to by and between Seller and Buyer.
(d) Seller’s Specific Warranties. Seller warrants to Buyer that as of the time Buyer becomes obligated to pay the purchase price for a Contract:
Seller will have caused title to the Contract, free of any lien or encumbrance, to be conveyed to Buyer and the Goods Sold are owned by the Customer free and clear of any lien or encumbrance other than the security interest of Buyer therein.
Each Customer was an adult fully identified by Seller at the time the Contract was executed and the Contract is enforceable according to its terms and against each Customer except as enforcement may be affected by bankruptcy and similar laws affecting creditors’ rights generally.
Each Contract contains all representations and warranties made by Seller to the Customer and all agreements of Seller and the Customer with respect to the Goods Sold.
All dealings with the Customer, including those in connection with any advertisements or purchase orders relative to the Contract or Goods Sold, and the execution of the Contract have been according to all applicable federal and state laws and regulations.
The conduct of Seller in developing the purchase transaction shall not subject Buyer to suit or administrative proceeding under any state or federal law, rule or regulation including, without limitation, the Federal Truth in Lending Act, the Federal Equal Credit Opportunity Act, the Fair Credit Reporting Act and any applicable state consumer protection law, rule or regulation, including, without limitation the, California Unruh Retail Installment Sales Act. Without limiting the generality of the foregoing, Seller expressly warrants with regard to the Contract that the decisions to enter into the Contract and to establish each of the terms thereof were made by Seller without regard to:(A) The applicant’s race, color, religion, national origin, marital status, age (providing the applicant is of legal age and has the capacity to enter into a binding legal contract), sex, disability, familial status or receipt of public assistance;(B) Whether the individual has exercised in good faith any right under the Consumer Credit Protection Act; or(C) Any other factor forbidden by the federal Equal Credit Opportunity Act, the Americans with Disabilities Act or any California law to be used for those decisions.
The Customer has and shall have no defense, offset or counterclaim as to the enforcement of the Contract arising out of the conduct of Seller.
Seller does not know of any fact that might adversely affect the enforceability or collectability of the Contract.
Prior to transmittal of the Contract to Buyer, the Goods Sold, with all accessories and options agreed by Seller to be delivered with the Goods sold, were delivered to the Customer, and such delivery was unconditionally accepted by the Customer as complete performance of Seller’s obligations under the Contract.
The Goods Sold are accurately described in the Contract.
The Goods Sold meet all of the requirements of applicable law, are in good operating condition and repair and is free of all mechanical defects.
Possession of the Goods Sold was not obtained by the Customer’s use and/or Seller’s use of a fraudulent scheme, trick or device not otherwise covered elsewhere by these warranties.
Seller has not received any monies directly from the Customer in connection with a sale memorialized by a Contract.
The Customer is not an employee of Seller or a member of such an employee’s immediate family.
(e) Seller’s Ongoing Obligations. As long as this Agreement is in effect Seller shall:
Take such action as is necessary or as Buyer may request to evidence and perfect this Agreement and Buyer’s interest in a Contract, its proceeds, and the Goods Sold.
Turn over promptly to Buyer in the form received, properly endorsed to Buyer where appropriate, any monies received by Seller concerning a Contract following its transmittal to Buyer unless it has been repurchased by Seller.
Not represent that it is the agent of Buyer; provided, however, that merely including that Contract financing is available through Seller’s relationship with Buyer on Seller’s web site or in Seller’s physical location is permitted.
Not repossess any Goods Sold or accept redelivery of any Goods Sold from a Customer without the prior written consent of Buyer.
Not collect, maintain, use or disclose to others any non-public personal information concerning a Customer, whether obtained from Buyer, the Customer or a third party, for purposes of marketing or selling this information without the prior written approval from Buyer.
Address any Customer requests, inquiries, or complaints by complying with Seller’s warranty or customer satisfaction policy to the same extent such warranty or policy is made available to cash customers.
(f) Effect of Breach of Warranty or of Attempted or Actual Rescission or Claim. If any of the warranties or representations herein with respect in a Contract is breached, or if a Customer asserts a claim for rescission, whether such Customer has a legal right to rescind or otherwise, or if a Customer asserts a defense to the Contract under state or federal law, including but not limited to such defense as is provided under the Federal Trade Commission Trade Regulation Rule concerning Preservation of Consumers Claims and Defenses (16 C.F.R. Part 433), or Civil Code § 1804.2, in either case as amended or superseded from time to time, regardless of whether the Customer has such claims or defenses, Seller unconditionally agrees to repurchase the Contract from Buyer upon Buyer’s demand therefor, for the Repurchase Price.
3. Conditions Precedent. Before Buyer shall consider any request by Seller to purchase any Contract, Buyer shall have received the following:a. Seller’s financial statements and financial or corporate information as requested by Buyer, prepared within the six-month period preceding any Contract purchase, each financial statement being in a form satisfactory to Buyer.
b. Such further agreements and documents as Buyer shall deem appropriate to protect its rights under this Agreement.
4. Representations and Warranties. Seller represents and warrants while Seller has any unpaid indebtedness or obligation hereunder, contingent or otherwise, that:
a. Seller is duly organized, existing and in good standing under the laws of the State of California, has powers and adequate license(s), authority, rights and franchises to carry on its business as now conducted and has the power and adequate authority to make and carry out this Agreement as herein provided;
b. The execution, delivery, and performance of this Agreement are duly authorized, do not require the consent or approval of any governmental body or regulatory authority and are not in contravention of or conflict with any law or regulation or any term or provision of its Articles of Incorporation or ByLaws, Articles of Organization, Operating Agreement or Partnership Agreement, as applicable. This Agreement is the valid, binding and legally enforceable obligation of Seller according to its terms subject only to the Bankruptcy laws of the United States;
c. Seller’s financial and corporate information and all other statements and data submitted in writing by Seller to Buyer in accordance with Sections 3.a. and 5.b. are true and correct and truly reflect the financial condition of Seller as of the date thereof and the results of the operations of Seller for the period covered thereby.
d. Seller possesses all necessary trade names, service marks, and licenses to conduct its business as now operated, without any known conflict with the valid trade names, service marks and license rights of others.
5. Seller Covenants. Seller agrees that while Seller has any unpaid indebtedness or obligations hereunder, contingent or otherwise, Seller shall, unless Buyer shall otherwise consent in writing:
a. Maintain and preserve its entity existence and all rights, franchise, and other authority adequate for the conduct of its business, maintain its properties, equipment, and facilities in good order and repair and conduct its business in an orderly manner without voluntary interruption.
b. Maintain financial records in a manner acceptable to Buyer and, if requested by Buyer, furnish Buyer with such ongoing financial and corporate information as Seller may require from time to time.
c. Reimburse Buyer upon demand for all legal costs, including reasonable attorneys’ fees and other expenses incurred in enforcing any of Seller’s obligations under this Agreement.
d. Promptly notify Buyer in writing of any sale or transfer of any ownership interest of Seller.
6. Default. The occurrence of any of the following events shall be a default hereunder:
a. Failure of Seller to perform any other obligation, term, or condition binding upon Seller and specified herein or in any other agreement with Buyer.
b. Any of Seller’s representations, warranties, or covenants made in Section 4 and 5, or any statement or certificate at any time given in writing pursuant hereto or in connection herewith shall be false or misleading in any material respect.
c. Seller shall fail to provide financial or corporate information in conformity with Sections 3.b. and 5.b., or any such financial or corporate information shall prove to be false or misleading.
d. Seller shall become insolvent; admit in writing of its, his or her inability to pay its, his or her debts as they mature; make an assignment for the benefit of creditors; initiate or have initiated against it, him or her any proceeding under any bankruptcy law or any law for the relief of debtors unless such filing against it, him or her is dismissed within thirty (30) days; or dissolve or die.
a. Customer Dealings. Seller understands and agrees that Buyer may without notice to Seller extend the due dates of installment payments due or to become due under any Contract, amend any Contract by agreement with the Customer or otherwise deal with the Customer in whatever manner Buyer deems reasonable and appropriate, without affecting Seller’s obligations to Buyer under this Agreement.
b. Contract Documentation. Seller acknowledges that while the documents required by Buyer in connection with the documentation of a Contract shall have been approved by Buyer for Buyer’s indirect credit sale contract program, Buyer makes no warranty of any nature whatsoever, express or implied, with respect to the form, substance or enforceability of any such documentation. Use by Seller of any such documentation for Seller’s own purpose is at Seller’s own risk. If Seller uses any such documentation for such purposes, Seller shall not refer to Buyer thereon. Seller shall further satisfy itself as to the form, substance and enforceability of the then applicable Contract form before submitting any transaction to be documented on said Contract to Buyer for its approval hereunder, bearing in mind that Seller shall be potentially liable under various consumer protection laws if the disclosures contained in the form are inadequate and that Buyer may under certain circumstances require Seller to repurchase the Contract.
c. Changes to Buyer Policy. Seller understands and agrees that Buyer reserves the right from time to time to change its policy regarding its purchase of Contracts in Buyer’s sole discretion. Seller therefore understands and agrees that Seller has no right to rely on any Contract being purchased by Buyer. The temporary or permanent discontinuance of the purchases of Contracts shall not affect the terms of this Agreement that apply to previously purchased Contracts.
d. Survival of Warranties. All agreements, representations, and warranties made herein shall survive the execution and delivery of this Agreement and all transactions contemplated hereunder.
e. No Waiver. No failure or delay by either party in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right, or privilege preclude other or further exercise thereof or of any other right, power, or privilege. All rights and remedies existing under this Agreement are cumulative to, and not exclusive of, any rights or remedies otherwise available.
f. Notices. Any notice herein required or permitted to be given shall be in writing and may be personally served or sent by one of the following methods: (1) United States mail, return receipt requested; (2) commercial messenger service to Buyer’s address last provided to Seller; or (3) e-mail to the e-mail addresses provided by the parties to each other from time to time. All notices shall be deemed to have been delivered when received by the other party.
g. Descriptive Headings. The descriptive headings of the several sections of this Agreement are inserted for convenience and shall not be deemed to affect the meaning or construction of any of the provisions hereof.
h. Severability. In case any provision in this Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
i. Termination. Either Buyer or Seller may terminate this Agreement immediately as to new Contracts.
j. Superseding Amendments. The terms and conditions of this Agreement shall apply to all Contracts purchased until this Agreement is amended by Seller and posted on Seller’s portal with a new effective date. Acceptance of an superseding amendment made by Seller shall be conclusively presumed when Seller tenders a Contract to Buyer for approval for purchase or for purchase hereunder after such a superseding amendment has been posted on the portal by Seller.
k. Applicable Law. This Agreement and the rights and obligations of the parties thereto shall be governed by California law.
l. Legal Proceedings. If either party institutes legal proceedings to enforce any of the terms of this Agreement, the prevailing party in such proceeding shall be entitled to recover its attorneys’ fees and court costs incurred in the action.
m. Assignability. This Agreement shall be binding upon the parties hereto and their respective successors and assigns, and shall inure to the benefit of the parties hereto and the successors and assigns of Buyer. Seller may not assign its rights or obligations under this Agreement without Buyer’s prior written consent.
n. Integration. This Agreement covers all purchases heretofore made by Buyer of Contracts originating from Seller. All such agreements and understandings are superseded to the extent inconsistent with the terms of this Agreement.
o. Licenses. Each party shall, at its own cost and expense, procure any and all necessary permits or licenses to allow it to perform as herein set forth, and further agrees to conform to and comply with all lawful orders, ordinances, statutes and regulations of the Federal, State or Municipal governments pertinent to the acts to be performed hereunder.
p. No Employment, Partnership, Agency, or Other Relationship. Nothing contained in this Agreement shall be deemed or construed by any person to create an employment relationship, partnership or joint venture between Seller and Buyer, or to constitute either of Seller or Buyer, the employee, agent, nominee or representative of the other. Rather, Seller and Buyer are entering into an arm’s-length agreement all as set forth in this Agreement, and each of Seller and Buyer shall perform all of its duties and obligations hereunder on an individual and independent basis. Neither Seller nor Buyer shall represent itself to any person as the other’s employee, agent, contract agent, correspondent, nominee, or otherwise. Neither Seller nor Buyer shall name the other nor use the other’s trademarks in its advertisements, stationery, business cards, or contract applications or related documents or forms without the prior written consent of the other.
q. Third Parties. This Agreement confers and shall be deemed to confer or create no rights in or for third parties.
r. Assignment. Neither party hereto may assign its rights and obligations under this Agreement to a successor-in-interest without the prior written consent or the other, and unless: (1) the assigning party is current in its obligations under the Agreement at the time of transfer; (2) the assignment is in conjunction with a sale or transfer of all or substantially all of the assets of the assigning party related to performance under this Agreement (i.e., in the case of a merger or acquisition); (3) the successor-in-interest is not a competitor of the non-assigning party; and (4) the successor-in-interest agrees to and demonstrates to the other party that it has the ability to assume all of the obligations of the assigning party. Notwithstanding the foregoing, this Agreement shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto.
s. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original but all of which together shall be deemed to be one instrument.
t. Interpretation. Any ambiguities in this Agreement will not be strictly construed against the drafter of the language concerned but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting. This Agreement will not be construed against any party by reason of its preparation.
u. Exhibits. All Exhibits to this Agreement are part of this Agreement and are incorporated into the Agreement by this reference as though fully set forth herein.
v. Alternative Dispute Resolution. Except as hereunder provided, any controversy or claim, including any claim of misrepresentation, arising out of or related to this shall be settled by arbitration under the then-current rules of the American Arbitration Association. The decision and award of the arbitrator shall be final and binding and the award so rendered may be entered in any court having jurisdiction at the place of arbitration. The arbitration shall be held and the award shall be deemed to be made in San Francisco, California. Notwithstanding the forgoing, the parties shall not be compelled to arbitrate any claim which is (1) brought by a party not bound by an arbitration agreement with one of the parties hereto; or (2) is in the nature of a cross-claim, including a claim for contribution and/or indemnity pursuant to this Agreement or at law in an action in which the parties hereto are co-defendants.
8. PREFERRED FINANCING PROVIDER
The Seller (also known as the “Merchant”) agrees, during the time of this agreement, to make the Buyer (also known as “Cherry Technologies Inc.”) it’s preferred financing provider. This means that Merchant agrees to:
a. Offer Cherry Technologies Inc.’s financing program to patients when financing is discussed, asked about, or otherwise considered by patients/customers of the Merchant.
b. Have Cherry Technologies Inc. prominently featured at the physical location of the Merchant as the preferred financing option for the Merchant’s customers/patients,
c. Have Cherry Technologies Inc. listed on the Merchant’s website and marketing materials,
d. Promote Cherry Technologies Inc.’s financing on digital channels used by Merchant such as Instagram, Email, Facebook, LinkedIn, Twitter, Yelp, Google, Groupon etc., if Merchant advertises financing options on these channels.
In consideration of the foregoing, Cherry Technologies, Inc. provides the Merchant with First Look Pricing so long as the above is met by the Merchant. If Cherry Technologies, Inc. determines, at its sole discretion, that the above is not met by the Merchant, then Merchant will be given the options of 1) remedying, 2) continuing with Cherry Technologies, Inc.’s Second Look Pricing or 3) terminating the agreement.