All Pet Credit Registration Form
By checking the acceptance box below, I am providing my signature on this Registration Form, and I authorize and/or confirm all of the following:
(i) Bank is authorized (and I consent) to use and store the information on this Registration Form and to verify the information contained herein. For purposes of this authorization and consent, “I” and “me” refers to Veterinarian and any of its owners, principals, partners, officers and/or directors who, for purposes of this authorization and consent are deemed to have executed this agreement jointly and severally; and
(ii) Bank is authorized to automatically deposit any funds owed to Veterinarian through the All Pet Credit Financial Products Program to the Veterinarian’s bank account at the Veterinarian’s bank named above; and
(iii) Bank is authorized to debit Veterinarian’s bank account for the purpose of correcting an erroneous credit previously deposited into Veterinarian’s bank account, as well as any other purpose permitted by the All Pet Credit Financial Products Program Terms and Conditions; and
(iv) Bank is expressly authorized to adhere to any reasonable instructions, which it may receive from employees of Veterinarian; and
(v) Veterinarian has read the All Pet Credit Financial Products Program Terms and Conditions and Veterinarian agrees and acknowledges that, upon enrollment into the All Pet Credit Financial Products Program, Veterinarian shall be bound by and shall comply with all All Pet Credit Financial Products Program Terms and Conditions; and
(vi) The execution of this Registration Form and participation of Veterinarian in the All Pet Credit Financial Products Program has been duly authorized by all necessary corporate proceedings. This Registration Form has been duly executed and delivered by me on behalf of Veterinarian, and is a valid and legally binding agreement of Veterinarian. The execution and delivery of this Registration Form and the compliance by Veterinarian with all provisions of the All Pet Credit Financial Products Program Terms and Conditions will not conflict with or violate any applicable law, nor will such execution, delivery or compliance violate or result in the violation of the Articles of Incorporation or Bylaws (or analogous rules of governance) of Veterinarian; and
(vii) I certify that I an owner or officer of Veterinarian’s clinic(s), that I have carefully read the All Pet Credit Financial Products Program Terms and Conditions, and I am duly authorized to execute this Registration Form and bind Veterinarian and Veterinarian’s clinic(s) to all obligations set forth in this Registration Form and the All Pet Credit Financial Products Program Terms and Conditions. In addition, for purposes of Paragraph (i) above in the authorization section, I am duly authorized to execute this Registration Form and bind any owner, principal, partner, officer, and/or director of Veterinarian’s clinic(s); and
(viii) IMPORTANT INFORMATION FOR BUSINESSES ABOUT ESTABLISHING A BUSINESS RELATIONSHIP: To help the United States Government fight terrorism and money laundering, Federal Law requires Bank to obtain, verify and record information that identifies each business or entity that opens an account or establishes a relationship with Bank. Accordingly, Veterinarian must provide its business name, a street address and a tax identification number to open an account or establish a business relationship; and
(ix) I understand by clicking on the AGREE AND SUBMIT button immediately following this notice, I am providing instructions to Bank under the Fair Credit Reporting Act authorizing Bank (1) to obtain information from my personal credit profile or other information from Experian or another consumer reporting agency, and (2) to furnish such necessary information to the consumer reporting agency about me. I authorize Bank to obtain such information to establish a business relationship with Bank.
All Pet Credit Financial Products Program Terms and Conditions
1. The Agreement.
The ALL PET CREDIT FINANCIAL PRODUCTS PROGRAM (the “Program”) made available hereunder consists of an open-end credit program (the “PLCC Program”) and a closed-end installment loan program (“Bread Pay Program”) offered by Comenity Capital Bank (“Bank”), for the purchase of Goods and/or Services (a “Purchase”) from a veterinarian in the All Pet Credit network (“Veterinarian”), provided that the Bread Pay Program may become available and commence at a later date than the PLCC Program. The undersigned Veterinarian and Veterinarian’s owner/officer listed on the Veterinarian Registration Form are collectively referred to as “Veterinarian”. Bank and Veterinarian are referred to herein as a “party” and collectively as the “parties”. These Program Terms and Conditions are attached to, and incorporated by reference in, the Registration Form completed and executed by or on behalf of Veterinarian. The Registration Form and these Terms and Conditions, including the Schedules attached hereto, are collectively referred to as the “Agreement”. Certain capitalized terms not otherwise defined herein shall have the meanings set forth in Schedule 1 attached hereto. Bank shall have no obligation to Veterinarian hereunder, with respect to either the PLCC Program or the Bread Pay Program, unless and until Bank provides written approval to Veterinarian of Veterinarian’s participation in the PLCC Program and/or Bread Pay Program, respectively.
2. Credit Transactions.
(a) Bank shall (either directly or through APC) separately provide to Veterinarians schedules detailing terms regarding the various Promotional Plans, regular revolving Purchases, and loan terms available to those individuals who open accounts under this Agreement (“Accountholders”) and the pricing related thereto (the “Rates and Fees Schedule(s)”). Bank may amend and re-distribute such Rates and Fees Schedule(s), and the related Veterinarian pricing for the Promotional Plans, regular revolving purchases and loan terms, from time to time in Bank’s sole discretion. For each Purchase made using the PLCC Program, Veterinarian shall pay to Bank fees in an amount equal to (1) Net Sales on regular revolving Purchases or Purchases under such Promotional Plan, multiplied by (ii) the applicable PLCC Discount Rate, as set forth in the Rates and Fees Schedule. Veterinarian may not add or assess any portion of the discount rate or fee, administrative fees, or any other form of additional fees, surcharge, consideration or security to an Accountholder who chooses to use the Program as tender for Goods and/or Services. The Program is a non-recourse program for Veterinarian, meaning that, subject to Bank’s chargeback and other rights as provided herein, Bank will not seek repayment from Veterinarian if the Accountholder fails to repay the credit transaction. Veterinarian will not accept any payments from an Accountholder for charges billed on an Account, and will instead refer the Accountholder to Bank’s payment address. If for any reason, Veterinarian inadvertently accepts an Accountholder payment, Veterinarian will hold such payment in trust for Bank and will immediately notify Bank and forward such payment to Bank for processing.
(b) Notwithstanding anything herein to the contrary, Veterinarian may charge an Accountholder’s credit account (“Account”) for Goods and/or Services that are initiated or received within thirty (30) days of the date on which the Account is charged (“Pre-Funding”). In the event that Veterinarian does not comply with the foregoing timing requirement, Bank shall exercise its chargeback rights pursuant to the Agreement and the Operating Procedures. Additionally, until such time as the Goods and/or Services are provided, the Accountholder will have the ability to request a refund of the amount charged to the Account for Goods and/or Services that have not been received. In such instances, the amount to be refunded will be returned to Bank as a credit to the Accountholder’s Account. If at any time Bank determines in its sole discretion that Veterinarian’s practice of Pre-Funding is not in compliance with the requirements set forth herein, or that such practice is a concern to Bank based on Bank’s adherence to applicable law, including, but not limited to, safety and soundness, regulatory feedback or reputational considerations, Bank may prohibit Veterinarian from continuing the practice of Pre-Funding.
(c) Veterinarian will receive the net Veterinarian Funds owed for each credit transaction. Veterinarian will be responsible for transmitting Transaction Records in accordance with the Agreement and Operating Procedures. Each day (not just business days) Bank shall promptly create electronic settlement files from Transaction Records processed by Veterinarian and transmit such files to Veterinarian via the Bank Portal on the same day and in a format acceptable to Bank. Veterinarian shall be responsible for properly designating, on the Transaction Records, the Veterinarian location from which individual transactions originate. Bank shall use commercially reasonable efforts to promptly verify and process such Transaction Records within two (2) business days, and Bank will remit to Veterinarian an amount equal to the net amount indicated by such Transaction Records for which such remittance is made. Bank will transfer funds via Automated Clearing House (“ACH”) to the Veterinarian bank deposit account indicated in the Veterinarian Registration Form (“Deposit Account”). Settlement for the PLCC Program and Bread Pay Program may occur separately, or on a combined basis, at Bank’s discretion.
(d) Notwithstanding anything herein to the contrary, Bank is not obligated to remit funds to Veterinarian (i) if and to the extent it determines that Veterinarian has failed to comply with any of the requirements of a Completed Transaction, (ii) if Veterinarian otherwise failed to comply with any of the terms or conditions of this Agreement or (iii) if Veterinarian is in breach of any of its representations or warranties under this Agreement.
(e) Veterinarian acknowledges and agrees that (i) the terms of the purchase of Goods and/or Services financed using the Program shall only be offered in the English language, and (ii) the Program shall only be offered in the English language, including the solicitation of applications, and (iii) the Program may be made available solely to Customers who are United States residents, to finance the purchase of Goods and/or Services for personal, family, or household use, the purchase price of which is listed in U.S. dollars at the time of Customer Check-Out.
(f) Chargebacks. Bank shall have the right to charge back Veterinarian the amount of any Purchase, including the unpaid principal balance, applicable sales tax, accrued and billed finance charges, fees, charges and any of such amounts written off by Bank relating to any such Purchase:
(i) If any applicant or Accountholder claim, defense, dispute, or basis for non-payment is based on an alleged action or inaction by Veterinarian and/or otherwise involves the Goods and/or Services, including but not limited to an alleged: (i) breach of warranty or representation; (ii) unauthorized use of the Account; (iii) charge for something other than an actual purchase; (iv) the charge slip related to the purchase is a duplicate of one already paid and/or the price on it differs from the price on the Accountholder’s copy of same; and/or (v) Bank’s determination, upon receipt of a fraud affidavit from the Accountholder, that the signature on any charge slip has been forged or is counterfeit; or
(ii) If Bank determines that, with respect to such purchase or the Account, that: (i) there is a breach of any warranty or representation made by or with respect to Veterinarian under this Agreement; (ii) there is a failure by Veterinarian to comply with any term or condition of this Agreement; or (iii) Veterinarian did not obtain an authorization/approval code as required by this Agreement; (iv) except as otherwise expressly permitted herein, the Goods and/or Services purchased have not been delivered, provided or shipped; or (v) the transaction was submitted to Bank more than thirty (30) days after it occurred or after Veterinarian is no longer an authorized participant in the Program; or
(iii) For any chargeback reason as set forth in the Bread Pay Program Schedule, including, without limitation, any chargeback reasons set forth in the Bread Pay General Terms and Conditions; or
(iv) For any chargeback reason as set forth in the Operating Procedures.
Bank will offset amounts to be charged back from transaction proceeds to be paid to Veterinarian, or may debit Veterinarian’s Deposit Account or demand payment from Veterinarian in immediately available funds for the full or any partial amount of such chargeback.
(g) Bank reserves the right to hold back from Veterinarian amounts otherwise owing under this Agreement in anticipation of chargebacks or other liabilities, including those that may occur upon termination of this Agreement or at any time after Veterinarian has received written notice from Bank stating that (i) Veterinarian has failed to comply with the terms of this Agreement; (ii) Veterinarian has experienced a higher level of chargebacks, disputes, cancelled orders, or refund requests than historical levels with Veterinarian or at levels higher than expected as determined in the sole reasonable discretion of Bank; (iii) Bank has determined that Veterinarian may not be able to fulfill its obligations to Customers because Veterinarian’s financial condition has deteriorated or because of an escalation of Customer complaints; (iv) Bank has determined that any one or more Completed Transactions will be unenforceable against the Accountholder directly because of an act or omission by Veterinarian; (v) Bank has determined that any Completed Transaction is not a bona fide Customer transaction or is otherwise the result of Veterinarian fraud; or (vi) Veterinarian has failed to provide documentation, financial statements, and other information and records to demonstrate compliance with the Agreement as required herein.
(h) If Bank withholds amounts from Veterinarian pursuant to Section 2(g) above, Bank will notify Veterinarian (which may be by email) of the amounts withheld and the reason for such withholding. Bank and Veterinarian will work together in good faith for a period of thirty (30) calendar days to resolve the reason for such withholding to Bank’s satisfaction. Upon the expiration of the thirty (30) calendar day period or such longer period as it may take to reach a resolution, Bank will either release the withheld funds to Veterinarian or set off the withheld amount against any amounts determined to be owed from Veterinarian to Bank, as determined by Bank in its sole discretion. Veterinarian agrees to provide Bank access to its records and other such information as may be needed to resolve such matter in an expeditious manner. Veterinarian agrees that, notwithstanding anything to the contrary in this Agreement, any Veterinarian Funds withheld are not contractually owed or payable to Veterinarian unless and until such time as the parties reach a resolution to release such funds to the Veterinarian pursuant to the resolution procedures described above. If and to the extent such Veterinarian Funds are set off against amounts owed from Veterinarian to Bank, such set off amount shall be deemed to be irrevocably paid to Bank.
3. Bread Pay Program. The terms and conditions set forth on Schedule 2 (the “Bread Pay Program Schedule”) shall apply in the event Veterinarian designates its election to participate in the Bread Pay Program. Notwithstanding anything herein to the contrary, Veterinarian’s participation in the Bread Pay Program is subject to (a) Bank’s express written approval of Veterinarian’s participation, and (b) the terms and conditions set forth on Schedule 2. At Bank’s discretion, the Bread Pay Program may be made available at a different time than the PLCC Program and offered on a separate platform from the PLCC Program, and may require separate integration with Veterinarian’s systems.
4. Ownership of Accounts; Terms and Conditions.
(a) Bank shall own all the Accounts under the Program from the time of establishment, and except as otherwise provided herein, Veterinarian shall not have any right to any indebtedness on an Account or to any Account payment from an Accountholder arising out of or in connection with any Purchases under the Program. Effective upon the delivery of Transaction Records by Veterinarian to Bank and payment to Veterinarian by Bank, Veterinarian shall be deemed to have transferred, conveyed, assigned and surrendered to Bank all right, title or interest in all such Transaction Records and in all other rights and writings evidencing such Purchases, if any.
(b) Bank together with any of its successors or assigns shall have sole control over the Program, including the financing products made available; the Loan APRs, fees, product terms and conditions; Program privacy policies and other disclosures and notices pertaining to the Program; and any invoices, billing statements and other communications pertaining to servicing and collecting on the Program.
5. Applications; Granting of Credit.
(a) Application Procedures. Customers who wish to apply for an Account (an “Applicant”) under the Program must submit a completed application on a form or in an electronic format approved by Bank (“Bank Application”). Bank shall establish and administer the underwriting and credit decisions for the Program, and Bank shall grant or deny the request for credit based solely upon such Bank’s credit criteria. In the case of in-person Bank Applications, facilitated by Veterinarian on behalf of the Applicant, Veterinarian shall (i) provide a copy of the Account agreement between Customer and Bank to the Applicant to be retained for the Applicant’s records, and (ii) follow any applicable Operating Procedures, including without limitation, providing to Applicants the Account disclosures, Truth In Lending disclosures, and Account agreement terms and conditions related to the Program, all as provided to Veterinarian by Bank. When facilitating any other method of Bank Application, Veterinarian shall follow all applicable Operating Procedures. The Bank Application shall be submitted to Bank by the Applicant or submitted by Veterinarian on behalf of the Applicant, as required in the Operating Procedures. If Bank grants the request for an Account, Bank will issue an Account to the Applicant to access an individual line of credit in an amount determined by Bank.
(b) Application Confidentiality. Regarding Bank Applications submitted in whole or in part to Veterinarian, Veterinarian agrees that it will (i) protect and keep confidential any and all Applicant information (which information shall be Bank Confidential Information as defined below) acquired as a result of participating in the submission of any such Bank Applications, and (ii) not disclose, or permit any third party to access, such information, other than authorized representatives of Bank, and (iii) follow all Operating Procedures applicable to such Bank Confidential Information.
(c) Granting of Credit. The decision to extend credit to any Applicant under the Program shall be Bank’s decision. Qualified Applicants desiring to use Program shall be granted an Account by Bank with a credit line in an amount to be determined by Bank in its discretion for each Applicant. Subject to applicable law, Bank shall determine the terms and conditions of the Account in its sole discretion.
(a) Veterinarian Marks. Veterinarian represents, warrants and agrees that it has the legal right to use and to permit Bank and its successors and assigns to use Veterinarian’s trade names, trademarks and service marks utilized by Veterinarian in the conduct of its business. Veterinarian hereby authorizes Bank and/or its affiliates to use Veterinarian’s trade names, trademarks and service marks as necessary in the servicing of the Accounts, such as in the collection process where it is necessary to identify the location of the purchase that is the subject of the amount(s) being collected. Veterinarian hereby agrees that, in the event of any termination of its participation in the Program (for any reason), Bank and its affiliates shall be permitted to use Veterinarian’s trade names, trademarks and service marks to the extent necessary to continue the servicing, administration and collection of the Accounts.
(b) Bank Marks. Veterinarian recognizes that Bank is the sole owner of all trademarks, service marks, or names owned by Bank or licensed (and capable of being sublicensed) to Bank used in connection with the Program (the “Bank Marks”), that Veterinarian has no rights of ownership or license therein, and that Veterinarian is not entitled to (and shall not) use the Bank Marks other than as explicitly and specifically provided in this Agreement. Veterinarian shall cease all use of Bank Marks upon the termination of this Agreement for any reason, or upon request from Bank.
7. Customer Service Inquiries. Neither party will attempt to answer inquiries concerning the other party’s products and services. Each party will refer inquiries concerning the other party’s products and services to the customer service telephone numbers provided by such other party. Such other party will use reasonable efforts to address such inquiries in a timely and effective manner. Veterinarian will cooperate with all reasonable investigations of Bank in response to an Accountholder’s refusal to pay amounts owed on his or her Account in whole or in part due to complaints regarding the Goods and/or Services that are the basis for the amount(s) owed.
8. Integration; Operating Procedures; Marketing; Compliance Training.
(a) Veterinarian shall comply with Bank instructions, guidelines and/or procedures regarding integration of the PLCC Program and Bread Pay Program, as applicable. Veterinarian shall provide access and log-in credentials to Bank Portals only to its employees who need access in connection with Veterinarian’s rights and obligations hereunder. Veterinarian is responsible for any actions taken in Bank Portals through Veterinarian’s log-in.
(b) Veterinarian shall comply with the operating procedures of the Program disseminated by Bank. Such operating procedures may be amended or modified by Bank from time to time; provided that a copy of any such amendment or modification shall be provided by Bank to Veterinarian as soon as practicable (the PLCC Program and Bread Pay Program operating procedures are referred to collectively as the “Operating Procedures”). The Operating Procedures include Bank’s policies and procedures as made available to Veterinarian, such as the Bread Pay Program Shipping Policy, Customer Dispute Resolution Procedure, and Marketing Compliance Guidelines. The Operating Procedures constitute a part of this Agreement and are incorporated herein by reference. Veterinarian shall also adhere to written instructions from Bank not specifically codified in its Operating Procedures.
(c) Veterinarian shall continuously: (i) prominently position the Program on the Veterinarian Platform, in-store, and through such other Sales Channels as Veterinarian and Bank may mutually agree upon, (ii) actively, and on a consistent basis, market, advertise and promote the Program through all Sales Channels and (iii) otherwise participate in and support the Program. The presentment of the Program as a financing option for the purchase of Goods and/or Services shall be in a manner approved by Bank. Veterinarian’s marketing, advertising and promotion activities in support of the Program shall comply with this Agreement and applicable law.
(d) Veterinarian shall not use any marketing materials or other collateral that mentions the Program, references or otherwise uses Bank’s name or Bank Marks (or any derivative related marketing), or references any terms or conditions of the Program unless such materials are provided by Bank (either directly or through APC on behalf of Bank) or are otherwise reviewed and approved in writing by Bank prior to deployment. Veterinarian may not implement or modify any Customer or employee incentive relating to the Program absent Bank’s prior written approval.
(e) Veterinarian will complete all training provided by Bank on or before the date that the PLCC Program and Bread Pay Program are each first made available by Veterinarian in the applicable payment acceptance channel, and promptly complete any ongoing training provided by Bank. Bank may provide more than one format of training, and Veterinarian shall participate in all trainings that are relevant to its product offerings and participating payment acceptance channels. Veterinarian shall cause all representatives, including any employees and approved contractors who will interact either with the Program or Customers (such individuals to be identified by Veterinarian) to attend such training or, alternatively, to provide training to such individuals that is comparable to the training provided by Bank, prior to interacting with the PLCC Program or Bread Pay Program, as applicable, or Customers. Veterinarian shall submit any training materials prepared by it to Bank for its review and approval prior to use. Veterinarian acknowledges and agrees that training provided by Bank is a Bank policy requirement that will help facilitate Veterinarian’s compliance with this Agreement, and is not legal advice. Veterinarian is solely responsible for acts or omissions by its employees, contractors, or other representatives that result in a violation of this Agreement or any laws or regulations governing the provision of financing to individual consumers.
9. Confidential Information and Security Controls.
(a) Veterinarian agrees and acknowledges that all of the following information is owned by Bank and constitutes Confidential Information (as defined below) of Bank (collectively, “Bank Confidential Information”): (i) all data related to the operation of the Program; (ii) Applicant and Bank Application data (which includes any non-public personal information regarding Applicants); (iii) Account and Accountholder information (which includes any non-public personal information regarding Accountholders) related specifically to the relationship between Bank and the Accountholders and (iv) any reports, analysis, statistics, and the like provided to and/or generated by Bank with regard to the Program.
(b) Veterinarian agrees that it shall not disclose any Confidential Information (defined below) Veterinarian obtains in connection with its participation in, and/or exposure to, the Program. “Confidential Information” is information not of a public nature including, without limitation, the terms and conditions of any agreement Veterinarian is a party to or has knowledge of in connection with the Program, Bank Confidential Information, Program reports, trade secrets, business and financial information, source codes, business methods, procedures, know-how and other information of every kind that relates to the Program. Notwithstanding the foregoing, Veterinarian may disclose such information to the extent disclosure is required by applicable law; provided that: (i) prior to disclosing any such Confidential Information to any third party, Veterinarian shall give notice to Bank of the nature of such disclosure and of the fact that such disclosure will be made; and (ii) prior to filing any documentation in connection with the Program with any governmental authority or agency, Veterinarian will consult with Bank with respect to such filing and shall redact such portions which Bank requests be redacted. Bank’s prior written approval is required for any other disclosure of Confidential Information.
(c) Except as to non-public personal information of an Accountholder (to which the confidentiality obligations of this Section always apply), these confidentiality obligations shall not apply to any information: (i) which is generally known to the trade or public at the time of such disclosure; (ii) which becomes generally known to the trade or public subsequent to the time of such disclosure; provided, however, that such general knowledge is not the result of a disclosure in violation of this Agreement; or (iii) which is independently conceived and developed by Veterinarian and proven by Veterinarian through tangible evidence not to have been developed as a result of a disclosure of information to Veterinarian, or any other person or organization which has entered into a confidential arrangement with Bank.
(d) Veterinarian acknowledges that any breach of these confidentiality provisions will result in irreparable damage to Bank and therefore in addition to any other remedy that may be afforded by law any breach or threatened breach of these confidentiality provisions may be prohibited by restraining order, injunction or other equitable remedies of any court.
(e) Veterinarian shall establish and ensure that effective controls and commercially reasonable procedures are in place, including, without limitation, those information security requirements set forth in Schedule 3 (i) for the handling, storage, and destruction of Applicant and Accountholder information under the Program and other Confidential Information; (ii) to ensure the confidentiality of Applicant and Accountholder information under the Program and other Confidential Information; and (iii) to ensure that Applicant and Accountholder information and other Confidential Information is not disclosed contrary to these provisions, or any applicable privacy, security or other laws, rules and regulations. Without limiting the foregoing, Veterinarian shall implement such physical, technical, and other security measures as are necessary to (w) ensure the security and confidentiality of Applicant and Accountholder information and other Confidential Information, (x) protect against any threats or hazards to the security and integrity of Applicant and Accountholder information and other Confidential Information, (y) protect against any unauthorized access to or use of Applicant and Accountholder information and other Confidential Information, and (z) properly dispose of Applicant and Accountholder information and other Confidential Information. Veterinarian shall promptly notify Bank in the event Veterinarian believes, or has reason to believe, that either a confidentiality or security breach, or any other unauthorized intrusion, has occurred with respect to Applicant or Accountholder information, or other Confidential Information, shall estimate the intrusion’s effect (including the effect on Bank), and shall specify the corrective action taken and to be taken by Veterinarian.
(f) Upon termination of Veterinarian’s participation in the Program, Veterinarian shall take appropriate measures to properly dispose of, destroy and remove from its systems Bank Confidential Information, including non-public personal information of Applicants and Accountholders, and any and all records regarding Applicants and Accountholders whether in paper, electronic, or other form, that are possessed by Veterinarian, including any compilation(s) of such records.
10. Veterinarian Obligations. Veterinarian agrees to: (i) make information available to its Customers regarding the Program as provided or approved by Bank for such purpose; and (ii) accept and process applications from all Applicants; and (iii) promote the Program, but only as authorized by Bank, and use all (and only) those promotional materials and forms approved by Bank; and (iv) accept the Accounts for all (and only) bona fide charges and credits for Goods and/or Services; and (v) except as otherwise expressly permitted herein, deliver all Goods and/or Services covered by any charge to an Account prior to the time the charge is submitted to Bank and (vi) confirm an authorization number or other indicator required by Bank has been issued for a transaction; and (vii) only submit such transactions to Bank in the required format as set forth in the Operating Procedures; and (viii) ensure that the transaction information (whether a charge or a credit) is accurately captured in the Bank Portal or otherwise in accordance with Bank’s instructions.
11. Records, Audits and Access.
(a) Pursuant to applicable laws and regulations, not limited to financial privacy regulations, Veterinarian will keep and maintain at its principal place of business appropriate books and records relating to its activities under this Agreement for a minimum of seven (7) years after their creation. Veterinarian will permit, once a year, unless Bank has reasonable cause to do so more than once, authorized representatives designated by Bank, at Bank’s expense, to visit its facilities and inspect its books and records pertaining to Applicants, Accounts, transaction records and any category of payments owed, and to make copies and take extracts there from, and to discuss the same with its officers and independent public accountants, all at reasonable times during normal business hours. Additionally, Veterinarian shall cooperate with any inspections or audits conducted by the regulatory agencies having jurisdiction over Bank and/or the Program and shall permit such regulatory agencies to visit its facilities related to the Program.
(b) Veterinarian shall furnish to Bank as soon as available the following information pertaining to Veterinarian (on a consolidated basis if applicable): (i) a balance sheet for the most recent fiscal year; (ii) a statement of income, retained earnings, and paid-in capital for the most recent fiscal year; (iii) a statement of cash flow for such period; and (iv) a copy of the opinion submitted by Veterinarian’s independent certified public accountants in connection with such of the financial statements as have been audited. If such financial statements are not available, Veterinarian shall provide to Bank Veterinarian’s most recent annual tax filing. Veterinarian shall provide additional financial information as reasonably requested by Bank.
12. Term and Termination.
(a) Bank may terminate this Agreement upon thirty (30) days’ written notice.
(b) Any bankruptcy (whether voluntary or involuntary) or insolvency by either party shall be considered an immediate termination event and shall result in the termination of this Agreement. This Agreement shall automatically terminate (i) upon termination or expiration of the Program or of Bank’s agreement with All Pet Credit for the Program, or (ii) if Veterinarian is no longer authorized to provide Goods and/or Services. Termination of this Agreement will not terminate, affect, or impair any rights, obligations, or liabilities of either party, which may accrue prior to termination, or which under the Agreement’s terms continue after termination. Veterinarian acknowledges that Bank may terminate this Agreement in its sole discretion.
(c) For the avoidance of doubt, Veterinarian’s participation in the PLCC Program and Bread Pay Program shall be coterminous with this Agreement. Notwithstanding the foregoing, Veterinarian’s participation in the Bread Pay Program may be separately terminated by Bank as set forth in the Bread Pay Program Schedule, and any such termination shall not affect this Agreement and the PLCC Program unless otherwise determined by Bank.
(d) Notwithstanding anything herein to the contrary, Bank may immediately suspend or terminate Veterinarian’s participation in the Program as Bank deems necessary to comply with applicable law or for other considerations deemed relevant by Bank. By way of example, following are examples of basis for Bank taking such action: (i) actions or inactions of Veterinarian conflict with a material term of this Agreement; (ii) actions or inactions by Veterinarian in regard to the Program involve matters which, taken individually, might not be considered material, but which occurring repeatedly constitute cause for suspension/termination; (iii) Bank determines that suspension or termination is necessary for antifraud concerns, Bank’s safety and soundness considerations, reputational concerns, and/or efforts to comply with applicable law; or (iv) Bank determines that Veterinarian may not (or may not be able to) comply with the Agreement or the Program in any material respect including due to the Bank Systems being incompatible with Veterinarian’s systems.
13. Representations, Warranties and Covenants; Intellectual Property; License.
(a) Representations and Warranties of the Parties. Each of Bank and Veterinarian represents and warrants to the other party that: (i) such party has the right, power, and authority to enter into this Agreement and perform the acts required of it hereunder; (ii) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder, do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (iii) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms (except as such enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general principles of equity).
(b) Additional Representations, Warranties and Covenants of Veterinarian. Veterinarian represents, warrants and covenants to Bank as of the date hereof and at all times during the term of this Agreement that (i) all information furnished by Veterinarian to Bank in connection with the Program has been, and will be, to Veterinarian’s best knowledge and belief, true and accurate in every respect material to the transactions contemplated hereby on the date as of which such information was or will be stated or certified; (ii) any action taken by Veterinarian or inaction (where Veterinarian has a duty to act) in connection with the Program, Bank, and/or the sales of Goods and/or Services shall be in compliance with all applicable law; (iii) Veterinarian has the legal right to use and to permit Bank and its successors and assigns to use Veterinarian’s trade names, trademarks and service marks utilized by Veterinarian in the conduct of its business; (iv) Veterinarian shall abide by the Operating Procedures of the Program as disseminated and modified by Bank, which includes honoring any Account properly issued under the Program and promptly delivering to Bank all Transaction Records evidencing transactions made under the Program no later than one (1) business day after the date of any such transaction; and (v) each Completed Transaction and the related Transaction Records represents the obligation of a Customer in the respective amount set forth therein for Goods and/or Services sold or rendered (as the case may be), together with applicable taxes and shipping fees, if any, and shall not involve any element of credit for any other purpose, and Veterinarian has no knowledge or notice of any fact or matter which would immediately or ultimately impair the validity of any Customer Check-Out or Transaction Records, or the transaction evidenced thereby, or its collectability; (vi) Veterinarian will (A) maintain the speed and efficacy of all systems that are required to enable and support the Program, including servers, software systems and hardware systems (collectively, “Systems”), (B) promptly address any issues, including, without limitation, enabling Systems and/or implementing any technology updates, upgrades, or fixes to their Systems that are needed for continued functionality of the Program as soon as possible and no later than thirty (30) days following Bank’s request and (C) provide Bank at least thirty (30) days’ notice of any changes to its Systems that may affect the functionality of the Program; (vii) Veterinarian is responsible and liable for the acts and omissions (and compliance by the following with the covenants and restrictions set forth herein) of its employees, service providers, contractors, representatives, or agents acting on its behalf; (viii) Veterinarian has and will maintain a plan designed to mitigate damages resulting from Force Majeure or other causes that would threaten operation of its business and/or loss or exposure of information requiring protection; and (ix) Veterinarian is and shall remain fully authorized, certified, and/or licensed to perform as required under the terms of this Agreement, which includes but is not limited to (A) being and remaining in good standing with any governmental or professional body having jurisdiction over Veterinarian, (B) becoming and having its personnel become trained with respect to participation in the Program as well as in compliance with the Operating Procedures and (C) having authority to perform and/or provide the Goods and/or Services for which Accountholders use the Program as a form of payment. Notwithstanding the foregoing, Bank may require Veterinarian to provide written certification on an annual basis that the foregoing representations and warranties are true and accurate representations of Veterinarian and have continued to be true and accurate throughout the term of this Agreement.
(c) Intellectual Property.
(i) Veterinarian represents and warrants, during the term of the Agreement, that in the event Veterinarian provides any software or hardware to Bank, including, without limitation, the Veterinarian Platform and all software, code, system, technology, content, procedures used in connection with or embedded in the Veterinarian Platform, Veterinarian has the legal right to such software or hardware and the right to permit Bank and its affiliates to use such software or hardware, and such use shall not violate any intellectual property rights of any third party. Any software or other technology developed by or for Veterinarian or its affiliates, to facilitate the Program, including but not limited to, software and software modifications developed in response to Bank’s request or to accommodate Bank’s special requirements and all derivative works, regardless of the developer thereof, will remain the exclusive property of Veterinarian and/or its affiliates. Any software or other technology developed by Bank or its affiliates or developed for Bank or its affiliates at Bank’s expense, to facilitate the Program, including but not limited to, software and software modifications developed in response to Veterinarian’s request or to accommodate Veterinarian’s special requirements and all derivative works, regardless of the developer thereof, will remain the exclusive property of Bank and/or its affiliates. Nothing in this Agreement shall be deemed to convey a proprietary interest to Veterinarian or any third party in any of the software, hardware, technology or any of the derivative works thereof which are owned or licensed by Bank and/or its affiliates, and Veterinarian shall return to Bank all materials containing such intellectual property upon termination of this Agreement.
(ii) With respect to one party’s intellectual property provided to the other, the receiving party may not, nor allow any third party to: (i) modify, translate, reverse engineer, decompile, disassemble, otherwise attempt to derive source code from, or create derivative works based on, the other party’s intellectual property; (ii) make unauthorized copies of the other party’s intellectual property; (iii) in the case of Veterinarian, distribute or market the Program and any intellectual property provided by Bank and/or its affiliates, as applicable, except to Customers and then only as permitted under this Agreement, without Bank’s prior written authorization; (iv) in the case of Bank, distribute or market Veterinarian’s intellectual property, except to Customers, without Veterinarian’s prior written authorization; (v) remove any proprietary notices, labels or marks on or in any copy of the Program, in the case of Veterinarian, or the other party’s intellectual property; (vi) alter or remove any warranties, disclaimers or license agreements shipped or provided with the Program, in the case of Veterinarian, or the other party’s intellectual property; or (vii) use the Program, in the case of Veterinarian, or the other party’s intellectual property in any manner or for any purpose other than as contemplated in this Agreement.
(iii) Subject to the terms and conditions of this Agreement, Bank hereby grants Veterinarian a limited, revocable, non-exclusive, non-transferable license to access, integrate and use the Bank Portal and Bank API in order to provide the Program to Customers during the term of this Agreement.
14. Veterinarian Notices of Changes. Veterinarian shall as soon as reasonably possible notify Bank of any: (a) change in the name or form of business organization of Veterinarian, change in the location of its chief executive office or the location of the office where its records concerning the Program are kept; (b) merger or consolidation of Veterinarian, the sale of a significant portion of its stock (or other form of ownership) or the sale of a substantial amount of its assets not in the ordinary course of business, or any change in the control of Veterinarian; (c) material adverse change in its financial condition or operations; (d) any change in business practices of Veterinarian that would have a material adverse effect on this Agreement or the Program; or (e) any occurrence that would trigger Bank’s termination rights under this Agreement.
15. Indemnification and Limitation of Liability.
(a) Veterinarian shall indemnify, hold harmless and, at Bank’s request, defend Bank, Bank’s affiliates, and its and their respective officers, directors, employees, subcontractors and their successors and assigns (collectively “Indemnified Parties”) from and against any and all liabilities, obligations, losses, claims, damages, actions, suits, proceedings, investigations, demands, assessments, adjustments, settlement payments, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses), and deficiencies suffered, sustained, incurred or paid by them (collectively, “Losses”) in connection with, resulting from, relating to, or arising out of any of the following: (i) an actual or alleged breach by Veterinarian of any representation or warranty set forth in this Agreement; (ii) an actual or alleged nonfulfillment or breach by Veterinarian of any covenant or agreement set forth in this Agreement; (iii) any chargeback based on action or inaction by Veterinarian or relating to Goods and/or Services provided or contemplated as being provided by Veterinarian, or based on the Operating Procedures as they apply to Veterinarian; (iv) the actual or alleged negligence, willful misconduct, or non-compliance with applicable law by Veterinarian; or (v) any actual or alleged action or failure to act (where there was a duty to act) by Veterinarian related to the Program and/or as otherwise provided for in this Agreement; (vi) any Losses caused by or related to Goods and/or Services charged to an Account, or (vii) the actual or alleged acts and omissions of Veterinarian’s affiliates, agents, representatives and/or subcontractors that perform services on behalf of Veterinarian or at Veterinarian’s direction, including Veterinarian or any of the foregoing allegedly causing Losses to third parties that have sought recover from Indemnified Parties.
(b) IN NO EVENT SHALL BANK OR VETERINARIAN BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES THE OTHER PARTY INCURS OR CLAIMS TO HAVE INCURRED ARISING OUT OF THIS AGREEMENT (INCLUDING LOST REVENUES OR LOST PROFITS, HOWSOEVER OR WHENEVER THE SAME MAY ARISE AND IRRESPECTIVE OF WHETHER THE OTHER PARTY HAD PRIOR NOTICE OF THE POSSIBILITY OF SUCH DAMAGES); PROVIDED, HOWEVER, THAT THIS LIMITATION SHALL NOT APPLY WITH RESPECT TO A PARTY’S INTENTIONAL BREACH OF THIS AGREEMENT.
(c) BANK’S TOTAL CUMULATIVE LIABILITY TO VETERINARIAN FOR ALL LOSSES INCURRED BY IT, FOR ANY CAUSE WHATSOEVER, SHALL NOT EXCEED THE AMOUNT PAID BY VETERINARIAN TO BANK UNDER THE AGREEMENT IN THE PAST SIX MONTHS; PROVIDED, THAT THE EXISTENCE OF MORE THAN ONE CLAIM OR EVENT FROM WHICH LIABILITY ARISES WILL NOT ENLARGE THIS LIMITATION.
(d) NO WARRANTIES. EXCEPT AS PROVIDED IN THE AGREEMENT, THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RESPECTING THE SERVICES AND/OR PRODUCTS SOLD OR PROVIDED BY BANK PURSUANT TO THIS AGREEMENT.
16. General Provisions.
(a) Relationship of Parties. The parties agree that in performing their responsibilities pursuant to this Agreement, they are in the position of independent contractors. This Agreement is not intended to create, nor does it create, a partnership, joint venture or any association for profit between Bank and Veterinarian.
(b) Assignment. This Agreement may be assigned by Bank. This Agreement may not be assigned, in whole or in part, by Veterinarian, without Bank’s prior written consent. This Agreement will be binding upon and will inure to the benefit of the parties and their representatives and respective successors and permitted assigns. Bank may, in its sole discretion, assign, sell, or transfer any Loan, Account, or right therein to any third party.
(c) Waivers. No party will be deemed to have waived any of its rights, powers or remedies hereunder unless that party approves such waiver in writing. Any delay, waiver, or omission by a party to exercise any right or power arising from any breach or default in any of the terms, provisions, or covenants of this Agreement will not be construed to be a waiver by that party of any subsequent breach or default of the same or other terms, provisions or covenants.
(d) Entire Agreement; Amendments. This Agreement, including any and all attachments hereto, constitutes the entire agreement between the parties relating to the subject matter hereof, and all prior negotiations and understandings, whether oral or written, are superseded hereby. Except as expressly stated otherwise herein, no modification or amendment of this Agreement will be effective unless and until set forth in writing and signed by the parties.
(e) Insurance. Veterinarian shall maintain insurance policies with insurers, and in such amounts and against such types of loss and damage, as are customarily maintained by other companies engaged in similar businesses within Veterinarian’s industry, and in any event sufficient insurance coverage to reasonably protect Bank from any and all liabilities for which Veterinarian has agreed to indemnify and hold harmless Bank.
(f) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Utah, without reference to the choice of law principles thereof. THE PARTIES HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE IN THE UNITED STATES FEDERAL DISTRICT COURT OF UTAH OR ANY OF THE STATE COURTS LOCATED IN SALT LAKE COUNTY, UTAH.
(g) JURY TRIAL WAIVER AND CLASS ACTION WAIVER. The parties waive any right to a trial by jury. The parties waive the right to participate in a class action or other representative action in court or in arbitration, whether as a class representative, class member, private attorney general or otherwise. Further, unless the parties otherwise mutually agree in writing, the arbitrator or court shall not join or consolidate a party’s claims with claims involving any other person or entity.
(h) Compliance with Laws. Each party shall comply with all applicable laws and regulations in performing its obligations under this Agreement. Veterinarian’s compliance with applicable law includes, but is not limited to, not engaging in: (i) the sale of any illegal goods and/or services, (ii) the illegal sale of otherwise legal goods and/or services, and (iii) sales in violation of federal and/or state laws designed to prevent unlawful gambling.
(i) Severability. If any provision of this Agreement or portion thereof is held invalid, illegal, void or unenforceable by reason of any rule of law, administrative or judicial provision or public policy, all other provisions of this Agreement will nevertheless remain in full force and effect to the extent such remaining provisions accurately reflect the intent of the parties.
(j) Bank’s Right to Initiate a Debit/Credit ACH, and Offset. Bank will debit or credit Veterinarian’s Deposit Account for the amount due based on the net total of the daily credit transactions including all calculated fees. If Bank is owed any amounts pursuant to this Agreement other than the daily credit transactions for more than fifteen (15) days after the due date, it shall, at its discretion, offset such amounts from any funds due to Veterinarian and/or against Veterinarian’s Deposit Account. At its option, Bank may invoice Veterinarian such amounts, which shall be paid within fifteen (15) days of receipt of invoice.
(k) Product Offers by Bank. The parties agree that Bank will have the exclusive right but not the obligation to make available to Accountholders various types of debt cancellation and credit related protection programs, and various other types of products and services, the fees for which are charged to the Accountholder’s Account, in Bank’s sole discretion.
(l) Taxes. Veterinarian will be responsible for, and agrees to pay, all sales, use, excise, and value-added taxes, or taxes of a similar nature (excluding personal property taxes and taxes based on Bank’s income which shall be borne by Bank), imposed by the United States, any state or local government, or other taxing authority, on all services provided by Bank under this Agreement. The parties agree to cooperate with each other to minimize any applicable sales, use, or similar tax and, in connection therewith, the parties shall provide each other with any relevant tax information as reasonably requested (including without limitation, resale or exemption certificates, multi-state exemption certificates, information concerning the use of assets, materials and notices of assessments). All amounts set forth in this Agreement are expressed and shall be paid in lawful U.S. dollars.
(m) Public Statements. Veterinarian shall not (i) make any public announcement regarding Bank or the Program, or provide any information concerning Bank or the Program to any representative of any news, trade or other media without the prior approval of Bank, or (ii) respond to any inquiry from any public or governmental authority concerning the Program or Bank without prior consultation and coordination with Bank. Upon Bank’s reasonable request from time to time, Veterinarian shall provide references or participate in marketing campaigns or testimonial initiatives for Bank regarding the services provided by Bank in connection with the Program.
(n) Notices and Communications.
(i) Notices under this Agreement to Bank shall be in writing and addressed or delivered to it at the addresses below or such other address or contact as may be designated by Bank by notice to Veterinarian:
Comenity Capital Bank
12921 South Vista Station Blvd.
Draper, UT 84020
With copies to:
3095 Loyalty Circle
Columbus, OH 43219
Attn: Legal Department
(ii) Notices and communications to Veterinarian may be sent by email to the email address or delivery to the physical address provided in the Enrollment Form, or through the Bank Portal. Veterinarian shall notify Bank of any changes to its primary email address or physical address listed on the Enrollment Form.
(iii) Electronic communications are considered received by Veterinarian 24 hours from the time they are emailed or posted to the Bank Portal. Notices sent to either party’s physical address are deemed given (A) two (2) business days after being mailed (with postage prepaid) or (B) when delivered by receipted courier service.
(o) Servicers. Notwithstanding anything in the Agreement to the contrary, Veterinarian acknowledges and agrees that Bank may, without limitation or condition, subcontract, assign and/or delegate any of its rights or obligations under this Agreement to any Bank affiliate or servicer, and that actions, instructions, policies, and/or notices from such entities shall constitute actions, instructions, policies, and/or notices of Bank. Veterinarian may not subcontract, assign and/or delegate any rights or obligations hereunder absent Bank’s prior written consent.
(p) Survival. No termination or expiration of this Agreement shall in any way affect or impair the powers, obligations, duties, rights, indemnities, liabilities, covenants or warranties and/or representations of the parties with respect to times and/or events occurring prior to such termination or expiration. No powers, obligations, duties, rights, indemnities, liabilities, covenants or warranties and/or representations of the parties with respect to times and/or events occurring after termination or expiration shall survive termination or expiration except for the following Sections and their corresponding schedules: Sections 2(d) and (f), Section 4, Section 6, Section 7, Section 9, Section 11, Section 15, Sections 16(a), (c), (d), (f), (g), (i), (j), (l), (m), (n), and (p).
“Bank API” shall mean Bank’s application programming interface.
“Bank Portal” shall mean the Internet-based platform or platforms designated by Bank which are available to Veterinarian for (i) linking the processing of Account applications and authorization of Account payments and credits, (ii) reporting the Account payments and credits in the settlement of funds, and/or (iii) facilitating related processing functions with respect to Accounts; or other Internet-based platform having substantially the same functions.
“Bank Systems” shall mean, collectively, Bank API, Bank Portals, and Bank systems.
“Completed Transaction” shall mean a transaction on the Veterinarian Platform for the purchase of Goods and/or Services using either the PLCC Program or the Bread Pay Program where (i) a Customer has initiated such purchase in a manner as determined by Bank that commences the Customer Check-Out; (ii) Veterinarian has completed a Veterinarian Authorization in compliance with this Agreement; (iii) Veterinarian has submitted a Veterinarian Settlement in compliance with this Agreement (including, without limitation, the Bread Shipping Policy, if applicable); and (iv) Veterinarian or Customer has not cancelled the transaction prior to settlement through the Bank API or Bank Portal.
“Consumer Personal Information” shall mean that non-public personal information regarding Applicants, Customers, and Accountholders, including but not limited to Account information, consumer reports, and information derived from consumer reports, that is subject to protection from publication under applicable privacy laws; for example, the California Consumer Privacy Act of 2018.
“Customer” shall mean any individual consumer who is a customer or potential customer of Veterinarian.
“Customer Check-Out” shall mean, for any purchase of Goods and/or Services using the Program on the Veterinarian Platform, the Customer check-out process on Bank Systems or through another process as directed by Bank.
“Goods and/or Services” shall mean those goods and/or services that are sold or offered by Veterinarian to the general public for individual, personal, family or household use.
“Loan” shall mean each borrower’s repayment obligation under Bread Pay financing.
“Net Sales” shall mean Purchases, less credits or refund for Goods and/or Services, as calculated each business day by Bank.
“Promotional Plan” shall mean any special Accountholder payment terms approved by Bank for certain Purchases under the PLCC Program, including without limitation any Purchases not made pursuant to regular revolving credit terms.
“Sales Channels” shall mean those certain sales channels through which Veterinarian sells its Goods and/or Services, regardless of what name Veterinarian uses for such sales channels, including (as applicable) but not limited to the following which may be owned and operated by Veterinarian: (i) retail locations, (ii) websites; and (iii) catalogs. Sales Channels does not include any third-party digital platform or a sales channel for which Veterinarian do not control.
“Schedules” shall mean, without limitation, the Bread Pay Program Schedule, the Information Security Schedule, the Rates and Fees Schedule(s), and any other schedule of terms attached hereto or provided separately to Veterinarians by or on behalf of Bank, and incorporated herein, from time to time.
“Transaction Record” shall mean the following, with respect to each Purchase or with respect to a credit or return related to a Purchase (as applicable) : (i) the charge slip or credit slip corresponding to the Purchase, credit or return; or (ii) the following information submitted to Bank, through the Bank Portal or as otherwise directed by Bank: the Account number of the Accountholder, identification of the Veterinarian location where the Purchase, credit or return was made (if applicable), the total of (x) the purchase price of Goods and/or Services purchased or amount of the credit, as applicable, plus (y) the date of the transaction and a description of the Goods and/or Services purchased, credited or returned; or (iii) electronic record whereby Veterinarian otherwise electronically submits the information described in subsection (ii) as directed by Bank.
“Veterinarian Authorization” shall mean authorization for the applicable Customer Check-Out through the Veterinarian Platform, Bank API, or other process as directed by Bank.
“Veterinarian Funds” shall be the United States dollar amount of:
(i) all Completed Transactions up to the applicable system cut-off time on the day that is two Business Days prior to such transfer (the “Payment Period”) minus the dollar amount of:
(ii) (a) all accrued and unpaid Fees owed by Veterinarian to Bank for all Completed Transactions during the Payment Period; (b) all refunds of any Completed Transactions processed by Veterinarian; (c) any full or partial amount of any Completed Transaction that Bank charges back to Veterinarian; (d) any Completed Transactions which are otherwise in dispute between Bank and Veterinarian; and (e) any accrued but unpaid amounts owed by the Veterinarian to Bank under this or any other agreement between Veterinarian and Bank.
“Veterinarian Platform” shall mean, collectively, Veterinarian’s payment acceptance channels as approved by Bank for participation in the Program (e.g., Veterinarian’s websites, mobile platforms, applications and point of sale systems, whether online or in-store).
“Veterinarian Settlement” shall mean settlement for Good and/or Services purchased using either the PLCC Program or the Bread Pay Program.
Other Definitions. As used in this Agreement, defined terms stated in the singular shall include reference to the plural and vice versa. The terms “shall” and “will” have the identical meaning (i.e., that something is compulsory and certain), and the use of one versus the other is not to be interpreted as implying less certainty or a sense of possibility or choice.
Bread Pay Program Schedule
1. Construction. This Schedule supplements and is incorporated by reference into the Agreement, and the terms of the Agreement supplement and are incorporated by reference and apply to this Schedule. In the event of any conflict or inconsistency among the Agreement and this Schedule, this Schedule shall govern to the extent such conflict or inconsistency relates to the Bread Pay Program.
2. Services. Bank shall make installment loan financing available to eligible Customers of Veterinarian via such payment acceptance channels (e.g., URLs, third party platforms, mobile and web-based applications and Veterinarian’s physical retail stores) as the Parties mutually agree upon, pursuant to this Schedule as described on Exhibit A attached hereto and incorporated herein (“Bread Pay”).
3. Integration; Access; Training. Veterinarian and Bank shall use reasonable efforts to commence the Bread Pay Program by such date as the parties agree upon in writing (which may be by email); Veterinarian acknowledges that the Bread Pay Program may become available and commence at a later date than the PLCC Program. Portions of Bread Pay may require integration of the Veterinarian Platform with Bank systems and use of Bank API. Bank may also provide Veterinarian access to a portal website (the “Veterinarian Portal”) that will allow the Veterinarian to review data about certain transactions using Bread Pay and to make certain manual adjustments to such transactions, such as initiating refunds to Customers. To the extent that Bread Pay functionality requires integration between the Veterinarian Platform and Bank Systems, Bank and Veterinarian shall work in good faith to complete integration within forty-five (45) days of commencing integration efforts. Veterinarian will cooperate in good faith with the integration process, including responding promptly to requests by Bank relating to integration and making promptly available to Bank any technical resources reasonably requested by Bank in order to complete integration. Bank shall conduct training of Veterinarian’s employees in the use of Bread Pay and, as applicable, maintenance of the Bank Systems and will provide necessary documentation and provide such other training and services as set forth in this Agreement.
4. Payments to/from Veterinarian. (a) For each Completed Transaction using the Bread Pay Program, Veterinarian shall pay to Bank: (A) a “Bread Pay Merchant Discount Fee” in an amount equal to (i) the gross dollar amount (inclusive of taxes and shipping fees) of such Purchase, multiplied by (ii) the applicable Bread Pay Discount Rate percentage, plus, if applicable, (B) a “Merchant Transaction Fee”, all as set forth in the Rates and Fees Schedule(s) provided separately to Veterinarian (collectively, the “Fees”). For each Completed Transaction utilizing a payment device issued by Bank and processed through a nationwide payment clearing network such as Mastercard or Visa (each such payment clearing network, a “Payment Network” and each such Completed Transaction, a “Payment Network Transaction”), Merchant will pay to Bank the difference, if any, between the Fees due for such Payment Network Transaction minus the amount Bank receives in interchange reimbursement fees via the applicable Payment Network for such Payment Network Transaction.
(b) Except for Payment Network Transactions, which shall be settled via the applicable Payment Network, and subject to any other limitations set forth in this Agreement, Bank shall cause to be initiated a funds transfer to the Veterinarian Deposit Account (or through other means acknowledged and agreed to by Bank) at the close of each business day in the amount of the Veterinarian Funds for Bread Pay transactions.
(c) With respect to any amounts owed by the Veterinarian to Bank, Bank may offset such amount as part of the Veterinarian Funds to be paid to the Veterinarian, to the extent the balance thereof is sufficient. Bank may, in its discretion, including if the balance of the Veterinarian Funds is insufficient to offset the payments owed to Bank by the Veterinarian, debit the Veterinarian Deposit Account for the amount due, or provide Veterinarian with an invoice for the amount due, and Veterinarian shall initiate a fund transfer to a Bank designated bank account for the amount due within 24 hours of receipt of invoice, or such other repayment timing as Bank may specify.
5. Bread Pay General Terms and Conditions. The Bread Pay General Terms and Conditions (the “Bread Pay General Terms and Conditions”) located here, or otherwise provided by Bank to Veterinarian, are incorporated herein to this Schedule by reference and shall govern Veterinarian’s offering of the Bread Pay Program.
6. Term and Expiration. This Schedule is effective as of the date of the Agreement and shall remain in effect until (i) the termination or expiration of the Agreement, or (ii) Bank’s earlier termination of this Schedule upon Bank’s thirty (30) days written notice thereof to Veterinarian. Notwithstanding the foregoing, Bank may immediately suspend or terminate Veterinarian’s participation in the Bread Pay Program as Bank deems necessary to comply with applicable law or for other considerations deemed relevant by Bank. By way of example, following are examples of basis for Bank taking such action: (i) actions or inactions of Veterinarian conflict with a material term of this Schedule; (ii) actions or inactions by Veterinarian in regard to the Bread Pay Program involve matters which, taken individually, might not be considered material, but which occurring repeatedly constitute cause for suspension/termination; (iii) Bank determines that suspension or termination is necessary for antifraud concerns, Bank’s safety and soundness considerations, reputational concerns, and/or efforts to comply with applicable law; or (iv) Bank determines that Veterinarian may not (or may not be able to) comply with the Bread Pay Program in any material respect, including due to the Bank Systems being incompatible with Veterinarian’s systems.
7. Effect of Termination. Upon termination of this Schedule, solely in respect of Bread Pay: (i) all authorizations and licenses granted under this Schedule will terminate and all rights shall revert to the granting party; provided, however, that Bank and its affiliates may continue to use Veterinarian marks in connection with the administration and collection of the balance due on Bread Pay Loans; and (ii) Veterinarian shall immediately cease to represent itself as a partner of Bank for purposes of Bread Pay, and cease its use of Bank’s or its affiliates’ intellectual property (including Bank Marks), remove references to Bread, Bank, and Bread Pay from any marketing or promotional materials, and discontinue use of and remove from all retail locations all marketing collateral and signage that refers to the foregoing (except as permitted under the PLCC Program); and (iii) Veterinarian will destroy or remove from its systems Bank Accountholder information, Confidential Information and Consumer Personal Information received pursuant to this Schedule. Nothing herein is intended to affect any authorizations, licenses or use rights granted under the Agreement with respect to the remaining portion of the Program.
8. Survival. No termination or expiration of this Schedule shall in any way affect or impair the powers, obligations, duties, rights, indemnities, liabilities, covenants or warranties and/or representations of the parties with respect to times and/or events occurring prior to such termination or expiration. No powers, obligations, duties, rights, indemnities, liabilities, covenants or warranties and/or representations of the parties with respect to times and/or events occurring after termination or expiration of this Schedule shall survive such termination or expiration, except for the following Sections and their corresponding schedules: Section 7 (Effect of Termination) and Section 8 (Survival), as well as any other provisions which by their nature and/or context normally would be deemed to survive the expiration or termination of this Schedule.
Information Security Schedule
This Information Security Schedule sets forth the terms and conditions relating to the security controls that Bank and Veterinarian are required to adopt and maintain when processing, transmitting, or storing Confidential Information.
1. Protection and Handling of Data
Veterinarian shall maintain and enforce appropriate physical, electronic, administrative, and procedural safeguards to prevent any portion of the Consumer Personal Information related to Applicants and/or Accountholders and other Bank Confidential Information (collectively, “Protected Data”) from being disclosed or made available except as is expressly permitted in the Agreement and in compliance with all applicable privacy, data security, breach notification, and data collection, use and processing regulations.
At a minimum, Veterinarian will develop, implement, maintain, and adhere to a written, comprehensive information security program (“ISP”), including safeguards for Protected Data sufficient to:
1. Ensure the security and confidentiality of Protected Data
2. Protect against anticipated threats or hazards to the security, confidentiality, or integrity of Protected Data
3. Protect against unauthorized access, alteration, loss, damage, or disclosure of Protected Data
4. Comply with all Privacy Laws and industry best practices regarding data privacy, security, and breach notification.
2. Access Controls
The following applies to Veterinarian and its affiliate(s) when accessing a Bank Portal to view or access Consumer Personal Information related to Applicants and/or Accountholders.
1. Limited access (least privileged) to information systems to a limited number of authorized personnel to perform their respective duties in support of the obligations set forth in the applicable agreement.
2. Assignment of a unique ID to all authorized personnel prior to granting access to information systems and data.
3. Termination of user access no later than the date of separation, whether physical or logical, that may provide access to information systems and data.
4. Password assignment must occur in a secure method by selecting passwords, or use of unique identifier technologies (such as token devices), including the following password minimum requirements: a. Temporary passwords must be provided to personnel, as applicable, in a secure method, with expiration on first use. b. User account credentials (e.g., password) must not be shared or stored in clear text. c. Complex password best practices must be enforced that include minimum password length, lockout, and set expiration period. d. Default or accounts with empty or null passwords are prohibited. e. Information systems must not be left authenticated when unattended and must be password protected when not in use.
3. Physical Security
All physical location entry points must be properly protected against unauthorized access.
4. Security Incident
1. In the event either party believes, or has reason to believe, that a confidentiality or security breach, or any other unauthorized intrusion has occurred with respect to Consumer Personal Information (each, a “Security Incident”), the party subject to the Security Incident (the “Impacted Party”) shall promptly notify the non-Impacted Party. The Impacted Party shall include in such notice an estimate of the intrusion’s effect on the non-Impacted Party and shall specify the corrective action taken and to be taken by the Impacted Party.
2. As soon as possible, but no later than forty-eight (48) hours after confirmation of a Security Incident, the Impacted Party shall provide the non-Impacted Party with a detailed description of the Security Incident including the type of information that was the subject of Security Incident, inclusive of each specific data element, the identity of the affected customers, and any other information the non-Impacted Party may reasonably request concerning the customers or the details of the Security Incident, as soon as such information can be collected or otherwise becomes available.
3. Notwithstanding the foregoing, in the event the Impacted Party is prohibited by law enforcement from disclosing the Security Incident to any person, including, but not limited to the non-Breaching Party, the Impacted Party shall not be obligated to comply with the notification requirements set forth in clauses (1) and (2) above until such time that law enforcement determines such notice will not impede in its investigation of the Security Incident.