Retail Installment Sales Contract Purchase Agreement

This Retail Installment Sales Contract Purchase Agreement governs the terms of the purchase of Retail Installment Sales Contracts by the Buyer from the Seller (as Buyer and Seller is defined below).

Effective Date: This Agreement is effective upon its acceptance by Buyer, as evidenced by Buyer’s acknowledgement 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 Sales Contract Purchase Agreement as originally executed or, if later amended or supplemented, then as so amended or supplemented.

b.          “Balance transfer” shall mean any transaction other than one arising from a bona fide, de novo sale of Goods or Services eligible for financing under this Agreement, pursuant to an express written agreement of the Borrower. A Balance Transfer is any transfer of Seller’s existing accounts receivables or de facto refinancing of any of Sellers’ existing finance agreements.

c.         “Buyer” shall mean the company with which Seller is contracting, and shall be Cherry Technologies, Inc., a Delaware corporation, in the event that Seller’s Principal Place of Business in any of the following jurisdictions: Colorado, Connecticut, Florida, Kansas, Montana, New Jersey, and Virginia, and Cherry Retail Installment LLC, a Delaware limited liability company otherwise.

d.        “Contract” shall mean a written agreement between Seller and a Customer, in a form acceptable to Customer, pursuant to which the Customer purchases Goods or Services from Seller for which Customer may defer payment, and that is offered to Seller for sale and assignment pursuant to this Agreement.

e.         “Customer” shall mean the purchaser, or collectively, the purchasers, of the Goods or Services pursuant to a Contract.

f.         “Goods or Services” shall mean the goods or services provided to a Customer by Seller pursuant to a Contract, as applicable to the Contract.

g.        “Principal Place of Business of Seller” refers to the jurisdiction identified as the Principal Place of Business in the Acceptance and Confirmation to this Agreement, below.

h.        “Purchase Price” shall mean the amount of money owed by the Customer under the Contract, excluding any finance charges, less the Transaction Fee.

i.        “Repurchase Price” shall be the original sale price of the Contract, less the amount of any Contract payments received in good funds by Buyer, or Seller on behalf of Buyer.

j.        “Seller” shall mean the entity identified as the Seller in the Acceptance and Confirmation to this Agreement, below.

k.         “Transaction Fee” means the amount calculated in accordance with rate provided to Seller by Buyer and which Buyer may, from time to time, modify in which case, such modifications shall apply to all sales of Contacts consummated on or after effective date specified in such notice (or, if no effective date is specified, first day of month after which such notice is provided).

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 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, as applicable, and all of Seller’s rights to the Contract. On and after each confirmation is received, automatically upon receipt, Buyer shall be the sole owner for all purposes (e.g., tax, accounting, and legal) of the Contracts purchased from Seller on such date and Buyer shall be entitled to all of the rights, privileges, and remedies applicable to said ownership interest, including the right to pledge, transfer, sell, assign, or exchange any such Contracts, and the right to collect on each such Contracts. Seller and Buyer agree to make entries on their respective books and records to clearly indicate the sale of applicable Contracts to Buyer as of each sale date. Seller and Buyer each intend the transfer of each Contract under this Agreement to be a true sale by Seller to Buyer of the Contract and any payments and proceeds relating thereto and that is absolute and irrevocable. At any time and from time to time, Seller will promptly and duly execute and deliver or will promptly cause to be executed and delivered such further instruments and documents and take such further actions as are reasonably requested by Buyer to confirm the sale of the Contracts and/or for the purpose of obtaining or preserving the full benefits of this Agreement, including, the filing of any financing or continuation statements under the UCC or other applicable law in effect in any jurisdiction with respect to the transfer of ownership of the Contracts. At any time and from time to time, each of Buyer and Seller will promptly and duly execute or deliver or will promptly cause to be executed or delivered such further instruments and documents and take such further actions as are reasonably requested by the other for the purpose of obtaining or preserving the full benefits of this Agreement. Within 10 days of receipt of Buyer’s request, or such earlier time as may be required by Buyer, Seller shall provide to Buyer, Customer transaction records or any other documentary evidence available to Seller and reasonably requested by Buyer necessary for Buyer to exercise its rights under a purchased Contract.

b.        Contract Documentation. With respect to any Contract that Seller wishes to offer to Buyer for 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. Seller acknowledges that by uploading or delivering executed Contracts to Buyer through such flow, it is offering such Contracts for sale to Buyer hereunder.

(1)         In event that Buyer makes available to Seller an Internet address for Customers to execute Contracts, it will be an address on a commercial site on World Wide Web portion of Internet accessible by Seller and Customers. As between parties, Buyer shall own, manage and maintain such Internet site and retain all right, title and interest in and to such Internet site, and Seller’s only right to such Internet site is to have it made available to Customers for use in connection with Seller’s offering of Contracts.

(2)        In event that Buyer provides or makes available any application programming interface (or similar technology) (“APIs”) to or on behalf of Seller in connection with transactions contemplated by this Agreement, Seller’s use of such APIs shall be governed by applicable licensing terms set forth in operating directives provided to Seller by Buyer including via posting on Buyer’s website or portal, the contents of which are incorporated by reference into this Agreement. In event there is any inconsistency between any such operating directives and this Agreement, this Agreement shall govern.

(3)         Buyer (in its discretion) may make available to Seller certain webpages, mobile applications and/or online portals for purposes of, among other things, viewing applicable Customer information, offering Contracts for sale and obtaining reports related thereto. Seller must comply, and cause each of its employees, agents and contractors who use such webpages, mobile applications or online portals on Seller’s behalf to comply, with all policies, procedures and terms of use applicable thereto, and Seller shall be responsible for its employees’, agents’ and contractors’ use of such webpages, mobile applications and online portals.

c.        Payment of the Purchase Price. As consideration for the purchase of a Contract, Buyer agrees to pay to Seller the Purchase Price of the Contract to the bank account identified by Seller (“Seller Account”) no later than five (5) business days from the purchase and sale of the Contract, except as otherwise provided herein or agreed in writing.

d. Seller’s Ongoing Obligations. As long as this Agreement is in effect Seller shall:

(1)         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 or Services.

(2)         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.

(3)         Not represent that it is the agent of Buyer or misrepresent the nature of the Contract; 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.

(4)         Not repossess any Goods or Services or accept redelivery of any Goods or Services from a Customer without the prior written consent of Buyer.

(5)         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.

(6)         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. Seller agrees it will cooperate with Buyer in responding to complaints, which cooperation may include providing documents evidencing Customer authorization to submit an application or evidencing any other matter related to Seller’s obligations under this Agreement. In addition, Seller agrees to work with Buyer in good faith to determine whether a Customer complaint relates to a faulty procedure or defective Goods or Services and, if either of these conditions apply to Customer complaint, Seller shall make all necessary corrections at no cost to Buyer or Customer.

(7)         Offer or present information about Contracts first to patients when financing is discussed, asked about, or otherwise considered by patients/customers of the Seller, and not subsequent to information or offers about other financing arrangements.

(8)        Promote Contracts on digital channels used by Seller such as Instagram, Email, Facebook, LinkedIn, Twitter, Yelp, Google, Groupon etc., if Seller advertises financing options on these channels.

(9)        Feature Contracts prominently at the physical location of the Seller as the preferred financing option for the Seller’s customers/patients.

(10)        Have Contracts as the preferred and listed first financing option among other financing options and providers on the Seller’s website and marketing materials.

(11)         Not provide to Customers any written materials developed by Cherry in connection with any loan products.

(12)         Not represent to Customers that Contracts are loans provided by Buyer, its affiliates, or business partners

(13)        Not to attempt to collect amounts due under a purchased Contract unless repurchased or specifically authorized in writing by Buyer.

(14)         Hold in trust for Buyer any payment received by Seller in respect of a purchased Contract and to deliver such payment to Buyer, together with Customer’s name, Contract number (if any), and any correspondence accompanying payment, within five days of receipt by Seller. Seller further agrees that, in connection with a purchased Contract, Seller shall be deemed to have endorsed, in favor of Buyer to which any such payment relates, any Customer payments by check, money order or other instrument made payable to Seller that a Customer presents to Buyer. Seller agrees that it shall not, directly or indirectly, make any payment on a Contract on behalf of a Customer without prior written approval of Buyer.

a.         Seller represents and warrants while Seller has any unpaid indebtedness or obligation hereunder, contingent or otherwise, that:

(1)         Seller is duly organized, existing and in good standing under the laws of the state identified by Seller in the Acceptance and Ratification, below 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;

(2)         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 by-Laws, 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;

(3)         Seller’s financial and corporate information and all other statements and data submitted in writing by Seller to Buyer in accordance with Section 4.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; and

(4)        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.

b. Seller’s Specific Warranties. Seller represents and warrants to Buyer that as of the time of the sale for a Contract:

(1)         Seller will have caused title to the Contract, free of any lien or encumbrance, to be conveyed to Buyer and the Goods or Services are owned by the Customer free and clear of any lien or encumbrance other than the security interest of Buyer therein;

(2)         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;

(3)         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 or Services;

(4)         All dealings with the Customer, including those in connection with any advertisements or purchase orders relative to the Contract or Goods or Services, and the execution of the Contract have been according to all applicable federal and state laws and regulations;

(5)         The conduct of Seller in performing the purchase transaction that is the subject of a Contract has and will comply with all applicable law 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 state’s 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 applicable state law.

(6)         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;

(7)         Seller does not know of any fact that might adversely affect the enforceability or collectability of the Contract;

(8)         Where some portion of the Goods or Services cannot, by their nature, be fully delivered to the Customer prior to the transmittal of the Contract to Buyer, Seller agrees that all of its obligations under this Agreement, including its representation and warranty above that delivery of the undelivered portion of the Goods or Services, was unconditionally accepted by the Customer as complete performance of Seller’s obligations under the Contract shall extend fully to all such undelivered Goods or Services; that Buyer may rely on that representation and warranty; and that all of Seller’s obligations under the Contract and this Agreement shall extend to all such undelivered Goods or Services;

(9)         The Goods or Services are accurately described in the Contract;

(10)         The Goods or Services meet all of the requirements of applicable law, are in good operating condition and repair and is free of all mechanical defects;

(11)         Possession of the Goods or Services 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;

(12)         Seller has not received any monies directly from the Customer in connection with a sale memorialized by a Contract;

(13)         The Customer is not an employee of Seller or a member of such an employee’s immediate family;

(14)         The subject of the Contracts offered to Buyer consists only of medical, aesthetic, or cosmetic Goods or Services and not product or service training (including all trainings related to the delivery of business services), commercial supplies, nor gift cards or prepaid debit cards, and are not listed on Cherry’s Prohibited Medical Services List, available at https://withcherry.com/terms/ and which may be updated from time to time in Buyer’s sole discretion;

(15)        In connection with the Contract, Seller has not offered extended product or service warranties and service agreements underwritten by Seller, an Affiliate of Seller or any third party, unless otherwise disclosed to Buyer in writing

(16)         In connection with the Contract, any extended warranty or service agreement complies with applicable law;

(17)         The Contract was executed within two (2) business days of the date it is offered for sale;

(18)         Seller maintains fair, reasonable and compliant refund and exchange policies, with the understanding that any refund policy which precludes reimbursement for Goods or Services not delivered or not rendered is not considered reasonable and has provided Buyer with a current copy thereof;

(19)        Seller’s policies ensure that (A) refunds and returns of Goods or Services are processed within 10 business days of agreed upon request, and (B) that Seller’s right to issue refunds by applying such refund to amounts owed under the Contract, as well as any major restriction or limitation related to refunds and returns, is clearly disclosed to Customer in one or more documents signed by the Customer and that such disclosures appear near the Customer signature area of such documents;

(20)        Seller has taken commercially reasonable measures to prevent fraudulent activity by a Customer or Seller (including any of its employees, agents or subcontractors) with respect to a Contract, including verifying identification of each Customer;

(21)        Seller shall not require, through a surcharge, an increase in price or otherwise, any Customer to pay any fees as a consequence of Customer executing a Contract except as disclosed in such Contract in accordance with applicable law;

(22)         All Goods or Services were or will be delivered to the Customer in the United States, and all Services provided to the Customer were or will be performed in the United States; and

(23)        If the provision of Goods or Services requires state licensing, Seller maintains the appropriate state-required medical or specialty sales licenses to provide such Goods or Services.

c.         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, Seller unconditionally agrees to repurchase the Contract from Buyer upon Buyer’s demand therefore for the Repurchase Price. This Section 3(c) will survive the termination of this Agreement and remain in effect until date on which no amounts outstanding are owed by a Customer on any purchased Contract

d.         Refunds.

 (1)         Without duplication of any amounts paid by Seller pursuant to Section 7, Seller agrees that it will refund on demand, and Buyer may charge back against Seller, amount of any Contract affected, plus any finance or other charges related to the Contract in each of following events:

(A)         Buyer determines that (i) Seller has breached or failed to fulfill any of its obligations under this Agreement, including Buyer’s instructions, or has breached any of its representations or warranties under this Agreement, or (ii) any Contract, or sale of Goods or Services is fraudulent or is subject to any claim of illegality, cancellation, rescission, avoidance or offset, including negligence, fraud, misrepresentation or dishonesty on part of Borrower or Seller, its agents, employees, representatives or franchisees;

(B)         (i) Borrower disputes or denies transaction, execution of transaction authorization, Contract, or delivery, quality, or performance of Goods or Services purchased or any warranties thereto, (ii) Goods or Services were not delivered or performed, or (iii) Borrower alleges that a refund to which Borrower was entitled was requested and refused by Seller or that a refund was issued by Seller but not posted to the Contract due to Seller’s failure to submit the refund to Buyer; or

(C)         Borrower asserts any claim or defense against Buyer or Lender as a result of any act or omission of Seller in violation of any applicable law (other than those that relate solely to terms and conditions of such Contract).

(2)        With respect to any chargeback or refund in connection with a purchased Contract:

(A)         Chargebacks or refunds for purchases of Goods or Services made by Customers through a Contract that are processed by a third party payment card network may, in discretion of Buyer, (i) be processed through such payment card network procedures or be satisfied by ACH debits in accordance with Section 6 or (ii) be settled on a net basis with other amounts due between Seller and Buyer pursuant to this Agreement.

(B)         Chargebacks or refunds for purchases of Goods or Services made by Customers through a Contract that are not processed by a third-party payment card network may, in discretion of Buyer, be processed in a manner generally consistent with original funds transfer or be satisfied by ACH or be settled on a net basis with other amounts due between Seller and Buyer pursuant to this Agreement.

(C)         In its reasonable discretion but upon prior notice to Seller, Buyer may compromise and settle any claim made by any Customer if such claim may give Buyer a right to chargeback (or a right to a refund) in accordance with this Agreement.  Buyer may settle such claim in an amount equal to amount paid for disputed Goods or Services, not to exceed the Purchase Price of the Contract.

(D)         If Buyer exercises its right of chargeback (or seeks a refund) in accordance with this Agreement, Buyer may set off or recoup amounts charged-back or subject to refund against any sums due to Seller under this Agreement and, if amount of such chargeback or refund exceeds sums due Seller, Buyer may demand payment from Seller for such amount (or set off or recoup such amount up to amount of sums due to Seller and demand payment from Seller for such excess amount).

(E)         Any chargeback or refund shall not affect Seller’s right (as may be assigned to Buyer) to recover from Customer unpaid amount for Goods or Services subject to such chargeback or refund, as if financing had not occurred, subject to terms of the Contract and applicable law. In such event, Seller shall bear all liability and risk of loss associated with recovering such amounts from Customer without warranty by, or recourse or liability to, Buyer.

(F)         Buyer shall promptly notify Seller of all requests by Customers for a chargeback or refund. Seller is required to address any dispute or other circumstance described in this Section to the reasonable satisfaction of Buyer within the time period specified by Buyer.

(G)         Where a chargeback or refund occurs within 30 days following the payment of the Purchase Price and Buyer determines that such chargeback or refund was not due in any way to Seller’s bad faith, Buyer shall pay to Seller amount of Transaction Fee with respect to Contract to which such chargeback or refund relates.

e.        Seller Obligations in Event of Refund. In the event that Seller agrees to provide a refund to a Customer for Goods or Services, Seller unconditionally agrees to do so by refunding the appropriate amount to Buyer and Buyer agrees, upon receipt of such amount, to credit the Customer’s outstanding balance on the Contract accordingly.

4.         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.

5. 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.         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.        Seller authorizes Buyer to initiate credit entries for amounts that Buyer may owe Seller. Seller authorizes Buyer to initiate debit entries, at such times as determined by Buyer, for (1) any credit entries in error and (2) any amounts which Seller owes under this Agreement, including the Repurchase Price and refunds. Such credit and debit entries will be to the Seller Account. Seller and Buyer acknowledge that origination of ACH transactions described in this Section must comply with applicable law and Nacha rules.

b.        Authorizations set forth in Section 6(a) will survive the termination of this Agreement and remain in effect until date on which no amounts outstanding are owed by a Customer on any purchased Contract. Seller must notify Buyer within three Business Days of any change to Seller Account for such ACH credits and ACH debits. Buyer agrees to comply with written notifications from Seller that alter Seller Account information (i.e., name and address of bank or financial institution, transit/routing number or account number) for Seller Account, provided that Buyer receives such notification in sufficient time and manner to give Buyer and bank or financial institution reasonable opportunity to act on it.

c.        Seller covenants that it will not object to any ACH debit initiated by Buyer in accordance with provisions of this Agreement and will not attempt to reverse any such ACH debit. In event that adequate funds are not available in Seller Account to satisfy an ACH debit or an ACH debit is otherwise not able to be completed, (1) Buyer will be entitled to immediately suspend Seller’s participation in Program without notice and withhold payments of Purchase Prices on Contracts purchased by Buyer, and (2) Seller shall be obligated to immediately pay full amount due pursuant to this Agreement in respect thereof by wire transfer of immediately available funds to the account specified by Buyer for such payment.

a.         Seller shall indemnify, defend (at Seller’s sole expense and with counsel reasonably acceptable to Buyer), and hold harmless Buyer (and its respective officers, directors, shareholders, members, partners, managers, employees, representatives and agents) (each, a “Buyer Indemnified Person”) from and against any and all losses, claims, investigations, litigation, proceedings, liabilities, damages, administrative charges and expenses (including attorneys’ fees) of any kind whatsoever (collectively a “Loss”) directly or indirectly arising out of or related to: (1) any breach of any representation, warranty, covenant or other obligation of Seller contained in this Agreement; (2) any failure of Seller to comply with any applicable federal, state or local law, rule, regulation or ordinance; (3) any negligence, fraud, error (whether negligent or not), omission or misconduct of Seller, its employees, subcontractors, representatives or agents; (4) Seller’s failure to perform any of its obligations, or discharge any of its responsibilities, to any person; (5) any defect in any Goods or Services sold or provided by Seller or any breach of any express or implied warranty in connection with such Goods or Services or other or claim or defense (regardless of validity thereof) arising out of any Contract or request for a Contract; or (6) any voluntary or involuntary bankruptcy or insolvency proceeding by or against Seller; provided that Seller shall have no obligations or liability under this Section 7(a) to the extent a Loss results solely from gross negligence or willful misconduct of a  Buyer Indemnified Person. Seller further agrees to reimburse each Buyer Indemnified Person upon demand for all legal and other expenses (including expenses related to investigation, settlement, compromise or satisfaction) incurred by any such Buyer Indemnified Person in connection with any of foregoing.

b.        Buyer shall indemnify, defend (at Buyer’s sole expense and with counsel reasonably acceptable to Seller) and hold harmless Seller (and Seller’s officers, directors, shareholders, members, partners, managers, employees and agents) (each, a “Seller Indemnified Person”) from and against any Loss directly or indirectly arising out of (1) gross negligence or willful misconduct of Buyer, or (2) its failure to comply with terms of this Agreement or any applicable federal, state, or local law, rule, regulation or ordinance; provided that Buyer shall have no obligations or liability under this Section 7 to the extent a Loss results solely from gross negligence or willful misconduct of a Seller Indemnified Person.

c.        In event that a Buyer Indemnified Person or a Seller Indemnified Person shall receive any claim or demand or be subject to any suit or proceeding in connection with which a claim may be made against such person under this Section 7(b), indemnified party shall give prompt written notice thereof to indemnifying party and indemnifying party will be entitled to participate in settlement or defense thereof; provided that failure to give such notice in a timely manner shall not impact availability of indemnification except to extent that it materially and adversely impacts defense of any such claim or demand. In any case, indemnifying party and indemnified party shall cooperate (at no cost to indemnified party) in settlement or defense of any such claim, demand, suit or proceeding.

d.         In event and for so long as any Buyer Indemnified Person actively is contesting or defending against any action, suit, proceeding, hearing, investigation, charge, complaint, claim, or demand in connection with (1) any transaction contemplated under this Agreement or (2) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction involving Seller or any Customer, Seller will cooperate with such Buyer Indemnified Person and its counsel with respect thereto, make available any personnel under its control, and provide such testimony and access to its books and records, including allowing copies to be made by such Buyer Indemnified Person or its representatives, as shall be reasonably necessary in connection therewith, all at sole cost and expense of Seller.

e.        Damages; Attorney’s Fees. SELLER SHALL BE LIABLE TO BUYER INDEMNIFIED PERSONS FOR ALL DAMAGES UNDER APPLICABLE LAW AND COSTS INCURRED IN ANY COLLECTION ACTION OR OTHER LEGAL PROCEEDING ANY INDEMNIFIED PERSON MAY BRING AGAINST SELLER (INCLUDING ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES AND OTHER EXPENSES OF ANY KIND WHATSOEVER). TO MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL ANY BUYER INDEMNIFIED PERSON BE LIABLE TO SELLER 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.

Seller hereby appoints Buyer as its payment collection agent for the limited purpose of receiving, holding, and settling down payments from Customers in connection with Contracts. Seller further agrees and understands that any such payment received by Buyer from a Customer, on Seller’s behalf, shall be considered the same as payment made directly to the Seller. Such payment shall be deemed to satisfy the Customer’s obligation to pay Seller, and the Seller will provide its Goods or Services to the Customer in the agreed-upon manner as if the Seller had received the payment directly from the Customer. Seller understands that Buyer’s obligation to pay the Seller is subject to, and conditional upon, successful receipt of the associated payments from the Customer. Seller further agrees that Buyer is not required to settle such payment to Seller in the event that Customer initiates a chargeback, ACH return, or otherwise disputes the payment. In the event that Buyer does not make a payment to Seller as required by this Agreement, Seller will have recourse against only Buyer and not against Customer. In accepting appointment as the limited payment collection agent of the Seller, Buyer assumes no liability for any acts or omissions of the Seller.

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 purchased Contract, amend any purchased Contract by agreement with the Customer or otherwise deal with such 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, 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 (1) change its policy regarding its purchase of Contracts, and/or (2) to decline to purchase any Contract or group of Contracts, in Buyer’s sole discretion.

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 e-mail to the e-mail addresses provided by the parties to each other from time to time. Buyer may provide notice via its electronic portal it may make available to Seller. All notices shall be deemed to have been delivered when received by the other party.

g.         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.

h.         Termination. Either Buyer or Seller may terminate this Agreement immediately as to new Contracts.

i.        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 a 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.

j.        Governing Law. This Agreement and any Dispute will be governed by and construed in accordance with the Federal Arbitration Act as set forth below, and by the laws of the state of California, without reference to its conflict of laws provisions.

k.        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, subject to section 4(c) of this Agreement.

l.        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. Buyer may assign its rights or obligations under this Agreement without Seller’s prior written consent.

m.        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.

n.        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.

o.        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.

p.        Third Parties. This Agreement confers and shall be deemed to confer or create no rights in or for third parties.

q.        Call Monitoring. With respect to any calls Buyer may make to Seller or Seller may make to Buyer, Seller acknowledges that such calls may be monitored or recorded by Buyer for quality assurance or other purposes.

r.        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.

s.        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.

t.         Press Release. Seller agrees not to issue any announcement concerning this Agreement or Seller’s relationship with Buyer in a press release or other similar communication to general public without Buyer’s prior written consent.

u.        Alternative Dispute Resolution. Except as hereunder provided, any controversy, dispute or claim, including any claim of misrepresentation (collectively, “Dispute”), arising out of or related to this Agreement shall be governed by and construed in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and shall be settled by arbitration under the then-current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the AAA in accordance with its Commercial Arbitration Rules. 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. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. Notwithstanding the foregoing, 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.