Agreement for Affirm Services

 

WHEREAS, the parties hereto wish to set forth the terms and conditions under which Professional may use the Services through Affirm, Inc. (“Affirm”) in connection with AffiniPay’s platform to enable such Professionals’ Customers to purchase certain legal, accounting and other professional services (“Professional Services”). 

 

WHEREAS, Affirm (itself or through its affiliates or bank partners) offers certain consumer payment options through Affirm’s proprietary financial platform and related application programming interfaces (“APIs”), virtual card networks, and other technology and access solutions (collectively, the “Services”); and

 

WHEREAS, Professional wishes to offer the Services through AffiniPay to Customers seeking to purchase Professional Services from Professional.

 

NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which hereby is acknowledged and intending to be legally bound hereby, AffiniPay and Professional agree as follows:

 

 

  1. Additional Professional Obligations.  In connection with offering Affirm Services through AffiniPay to Customers and potential Customers as a financing option for Professional Services sold by Professional, in addition to the terms and conditions set forth on Merchant’s website, Professional shall:
    1. Accurately explain the financing arrangement to the Customer pursuant to any training materials or marketing materials provided by AffiniPay or Affirm;
    2. Ensure any loan proceeds are deposited into a client trust account (when required) and/or comply with all Applicable Laws;
    3. Not send privileged or attorney-client Customer information to Affirm, any of its affiliates, Celtic Bank or Cross River Bank;
    4. Avoids any conflicts of interest by, for example, not recommending a particular Affirm Product to a Customer (out of self-interest) and not representing Affirm in other matters, and Professional shall notify AffiniPay if Professional has ever represented or is asked to represent AffiniPay, Affirm (or any of its affiliates or bank partners); 
    5. Not have a financial or ownership interest in AffiniPay, Affirm (or any of its affiliates, Celtic Bank or Cross River Bank), and Professional shall notify AffiniPay if Professional or any member of Professional has or comes to have a financial or ownership interest in AffiniPay, Affirm (or any of its affiliates or bank partners);
    6. Not make any assertion that a Customer owes it any amount for any transaction where Customer has executed a loan agreement for Affirm Services in connection with such transaction, including but not limited to asserting the existence of a mechanic’s lien in association therewith;
    7. Not access any consumer credit information of potential Customers or Customers in connection with the offering of Affirm Services;
    8. Not discriminate against or disadvantage Affirm Services transactions (relative to its transactions involving any other methods of payment) in any way, including, without limitation, by imposing any surcharge, fee or other amount on Customers solely because such Customer has used the Affirm Services in connection with Customer’s transaction with Professional or excluding Affirm Services transactions from receiving or participating in any discounts, rebates, savings, offers, incentives, or loyalty program benefits, points or rewards, which may be offered by Professional to its Customers in a manner such that the difference may result in a violation of Applicable Law, including the Truth in Lending Act;  
    9. Not make any statements, commitments, representations or warranties with respect to Affirm, or to the Affirm Services, or use any materials to promote the Affirm Services except as authorized in advance and in writing by Affirm or derived from and consistent in all respects with the training materials and other marketing materials provided to it by AffiniPay on behalf of Affirm; 
    10. Not utilize any autodialer, prerecorded or artificial voice message, or otherwise initiate any calls or text messages to consumers promoting or otherwise relating to the Affirm Services; 
    11. Require Customers to use Customers’ personal devices to complete the loan application process for the Services (Professional may not use any of Professional’s devices or directly assist Customers in their loan applications for the Services); 
    12. Do not discuss Affirm or the Services at any place other than Professional's usual place of business (no discussions in places such as a customer’s home, a consumer’s workplace or in dormitory lounges or at facilities rented on a temporary or short-term basis, such as hotel or motel rooms, convention centers, fairgrounds, and restaurants); 
    13. Promptly notify AffiniPay of (i) any changes to Professional Services for Customers that would result in a change to the cost of Professional Services that have been submitted for financing through the Affirm Services by sending such changes to AffiniPay through AffiniPay’s systems and (ii) any complaints by a Customer regarding the Affirm Services; and
    14. Will not market or offer Affirm Services to a Customer who is an entity client of Professional, including corporations, partnerships, and sole proprietorships, and would use the Services for commercial or business purposes. 
  2. Representations, Warranties and Covenants. Professional hereby represents and warrants to AffiniPay, as of the Effective Date and on each day during the term of this Agreement, that:
    1. it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or formation;
    2. it is duly qualified and in good standing under the laws of each jurisdiction where its ownership or lease of property or the conduct of its business require such qualification;
    3. it has the requisite power and authority and the legal right to conduct its business as now conducted and hereafter contemplated to be conducted;
    4. it has all necessary licenses, permits, consents or approvals from or by, and has made all necessary notices to, all governmental authorities, state bar, licensing board or courts having jurisdiction, to the extent required for the Professional Services;
    5. it is in compliance with its organizational documents;
    6. it has never violated any United States federal, state, local or administrative law (including common law), statute, rule or regulation, court rules, bar rules or bar guidance regarding financing arrangements (“Financing Arrangement Rules”); 
    7. it will comply with the conditions of ABA Opinion 484 to the extent not in conflict with the Financing Arrangement Rules; 
    8. it will comply with any training materials provided to it by AffiniPay on behalf of Affirm when promoting the Affirm Services to the extent not in conflict with the Financing Arrangement Rules;  
    9. (1) it has not ceased to pay its debts in the ordinary course of business nor is it unable to pay its debts as they become due, or (2) its financial condition is not such that the sum of its liabilities is greater than all of its assets;
    10. it will not market the Services to any customer or Customer who is compromised rationally or otherwise unable to provide informed consent;
    11. this Agreement shall not in any way be construed or applied to impact the independent and professional judgment of Professionals; and
    12. all forms of agreements Professionals provides to Customers are in compliance with Applicable Law.
  3. Compliance with Applicable Law. Professionals shall comply in all respects with all United States federal, state, local or administrative law (including common law), statute, rule or regulation, regulatory guidance, court rules, bar rules, bar guidance or requirement or bulletin, decree or order, or any other interpretation of a governmental authority or professional regulator (e.g. the applicable state bar or licensing bar) thereunder, applicable to the offering of its services to Customers, including any Financing Arrangement Rules (collectively, “Applicable Law”). 
  4. Enforcement.  Except as expressly set forth herein, this Agreement is for the benefit of, and may be enforced only by, AffiniPay and Professional and their respective successors and permitted transferees and assignees, and is not for the benefit of, and may not be enforced by, any third party. Notwithstanding the foregoing, Professional and AffiniPay each acknowledge and agrees that Affirm will have the right to (i) perform and/or enforce any and all rights and/or obligations of AffiniPay hereunder except as prohibited by Applicable Law and (ii) step into the shoes of AffiniPay as if AffiniPay was performing and/or enforcing such rights and/or obligations.
  5. Termination.  AffiniPay may immediately terminate this Agreement at any time for any reason upon written notice to Professional. Professional further acknowledges and agrees that Affirm has the right to require AffiniPay to terminate this Agreement at any time for any reason upon written notice to AffiniPay. Professional may terminate this Agreement for any reason within 30 days of written notice to AffiniPay.
  6. Order of Precedence.  In the event of any conflicts or inconsistencies between the terms and conditions of this Agreement and the terms and conditions stated on AffiniPay’s website, the terms and conditions of this Agreement shall control.