This Dealer Agreement (“Agreement”) is made and delivered as of today’s date, by the undersigned, and between AC Credit, Inc., (hereinafter called “ACCT) and (the “Dealer”). In consideration of the mutual promises, covenants, and agreements set forth below and for other good and valuable consideration, Dealer and ACCI agree as follows:
1. Definitions. As used herein, the following terms shall have the following meanings:
- “Account” – a credit account entered into by ACCI with one or more Buyers pursuant to which Buyer(s) may pay for Goods purchased from time to time by one or more Buyers from Dealer by an Account Agreement and/or Retail Installment Contract.
- “Account Agreement”- an agreement between Dealer and Buyer(s), establishing an Account, and any other applications, notes, contracts, Retail Installment Contracts, or documents in connection therewith. Each account agreement grants ACCI a security interest in the goods purchased.
- “Application” – Buyer(s) credit application completed and submitted to Dealer or ACCI requesting ACCI to establish an Account for Buyer(s).
- “Authorization’- means permission from ACC to Dealer to Account Agreement.
- “Buyer’ – each person who signs an Account Agreement or Retail Installment Contract as Buyer to obtain credit for personal, family, or household use.
- “Carrier or Carrier Goods” – means Goods or products manufactured by Carrier Corporation or any affiliated company and includes but is not limited to Carrier, Bryant, and Payne trade names or brands.
- “Chargeback” – the refusal of ACCI to pay Dealer for a Account Agreements or reimbursement by Dealer to ACCI with respect to one or more Accounts. Account Agreements, such that Dealer will become owner of the Accounts and/or Account Agreements,
- “Credit Slip” means evidence of a credit in paper or electronic form for Goods purchased from Dealer.
- “Programs”- means the financing program established by ACCI for qualified buyers purchasing the Dealer’s Goods, all pursuant to this Agreement,
- “Goods’ means the Carrier goods, products, warranties and related services sold by Dealer in the ordinary course of Dealer’s business to consumers for individual, family, personal or household use.
- “Purchase” or “Sale” means a purchase by a Buyer of Goods from a Dealer that is charged to an Account and becomes an obligation thereunder.
- “Return” – the return or adjustment of part or all of a Purchase or the price of a Purchase which is or will be shown as a credit to an Account.
- “Retail Installment Contract” – Is the contract signed by a Buyer(s) with Dealer that will be assigned to ACCI for the purchase of Goods.
2. Scope and Purpose. Dealer engages in the sale of heating, ventilation, air conditioning and other related products of Carrier Corporation and related services. Dealer desires to make financing available to consumers purchasing Carrier Goods from Dealer. ACCI, a lender in the business of providing credit for the purchase of consumer goods and services, has agreed with the Dealer for individual qualified consumers purchasing Carrier Goods pursuant to the terms and conditions set forth in this Agreement.
- Forms. ACCI will provide to Dealer standard application/agreements, Account Agreements, Credit Slips, completion certificates, rescission or cancellation notices, retail installment contracts and other forms (“Transaction Forms”) from time to time for use by Dealer in the Program, which Transaction Forms documents may be changed from time to time by ACCE. The design and content of the billing statements, contracts, and the Transaction Forms, and the terms and conditions of Accounts shall be determined by ACCI and are subject to change by ACCI from time to time.
- Credit Review: Ownership of Accounts. Dealer agrees and understands that ACC, and not Dealer, will approve all Accounts, and that ACCI is the party extending the credit on the Accounts, subject to ACCI’s rights to Chargeback the Accounts and Account Agreements as provided herein. Dealer agrees and understands that ACCi owns all Accounts, Account Agreements and related documents (the “Transaction Documents”), and has all right, title and interest to the Transaction Documents, including the payment obligation represented by the Transaction Documents and the security interest in the Goods covered by the Transaction Documents, unless and until there is a Chargeback of the Account and/or Account Agreements as provided for herein. All information relating to Buyers is owned by ACC and may be used by ACCI for any purpose deemed appropriate by ACC. ACCI, in its sole discretion, will determine whether the Buyer meets ACCI’s credit criteria, whether to establish an Account in such Buyer’s name, and the terms of such Account, including whether to later modify the terms of, or to terminate, the Account. ACCI will make all credit decisions and will establish all Accounts under Texas law. ACCI will accept applications for credit for only individual, personal, family or household use. ACCI shall not be obligated to accept applications for a Account Agreement or to approve any Account Agreement to consumers that do not have their principal residence and billing address in the Texas.
- Promotions, Services and Enhancements. ACCI may, from time to time, offer to existing or potential Buyers special credit promotions, additional services and/or enhancements. The terms of such promotions, services and enhancements shall be determined by ACCI in its sole discretion. In consideration of ACCI’s providing any such promotions or services, Dealer agrees to pay to ACCI for the period designated by ACCI such rates and amounts as may be designated by ACC in its sole discretion. ACCI may, without Dealer’s consent, at any time and in its sole discretion, change the terms or cost or discontinue the availability of any special credit promotion, service or enhancement.
- Agreements between Dealer and Third Parties. Except as specifically provided in this Agreement (i) ACCI shall not be a party to any agreement between Dealer and any party which distributes the Goods to Dealer or between Dealer and Carrier Corporation (herein the “Third Party Agreements”), and (ii) ACCI shall not in any way be responsible for the acts, omissions or breaches of any arrangement or contract between Dealer and any Third Party in any Third Party Agreement including, without limitation, any third party marketing agreements.
3. Fees, Discounts, Charges, Rates and Funding Consumer Rates.
- ACCI shall establish the rate to be charged on Account Agreements, which is subject to change from time to time in ACC’s sole discretion.
- Discount ACCI may establish the amount to be paid by ACCI to Dealer for any Account Agreement as a percentage of the amount of the Account Agreements, which amount is subject to change from time to time in ACCI’s sole discretion.
- Other Charges. ACCI may establish, from time to time, other fees and charges to be paid by Dealer to ACC in connection with the Program. An initial processing fee of $25.00 is to be paid by Dealer on each purchased Account Agreements.
- Funding. Dealer’s written advice to ACCI of an Account Agreement shall constitute Dealer’s request for ACCI to accept the Account Agreements and to pay the Dealer for the Account Agreement as agreed by ACC and Dealer from time to time. Subject to the terms and conditions of this Agreement, ACCI will accept or refuse, in its complete discretion, Account Agreements executed by Buyers, and will pay Dealer the total amount of the Account Agreements less (i) the amount of fees, charges, and discounts described herein; (ii) outstanding Account balances for Account Agreements subject to Chargeback; (iii) reimbursements, refunds, and customer credits; and (iv) any other amounts owed to ACCI under this Agreement by Dealer. Any amounts owed by Dealer to ACCI which cannot be paid by the aforesaid means shall be due and payable by Dealer on demand. Any payment made by ACCI to Dealer shall be subject to subsequent review and verification by ACCI.
4. Dealer Responsibilities Concerning Consumer Transactions. Dealer covenants and agrees that Dealer shall;
- not require, through an increase in price or otherwise, any Buyer to pay any surcharge or charge imposed by ACCI on Dealer.
- not establish minimum or maximum charge amounts without ACCI’s prior written approval.
- use only the form of, or modes of transmission for application/agreements, completion certificates, rescission and for cancellation notices, Account Agreements and Credit Slips as are provided by ACCI and not use any of such documents other than in connection with a transaction.
- with respect to applications for an Account, (i) make sure all information requested on the application is complete; (ii) obtain the signature on the Application of all persons whose name will appear on the Account or will be responsible for the Account (iii) give the applicant the initial disclosures at the time of signing the Application. Account Agreement prior to the first transaction under the Account, and (iv) verify the identification of the individual(s) applying for the Account, which verification shall include obtaining driver’s license and social security number.
- with respect to Account Agreements, enter legibly on a single Account Agreement prior to obtaining the Buyer’s signature (i) a description of all Goods purchased in the same transaction in detail sufficient to identify the transaction; (ii) the date of the transaction; (iii) the Authorization number, and (iv) the entire amount due for the transaction (including any applicable taxes).
- REQUEST AUTHORIZATION FROM ACCI UNDER ALL CIRCUMSTANCES. ACCI may refuse to accept or fund any Account Agreement that is presented to ACCI for payment more than ninety (90) days after the date of Authorization of the Sale. If Authorization is granted, legibly enter the Authorization number in the designated area on the Account Agreements. If Authorization is denied, do not complete the transaction and follow any instructions from ACCI. Dealer shall use its best efforts, by reasonable and peaceful means, to retain or recover the Goods if Dealer is advised to retain the goods in response to an Authorization request. The obligation to retain or recover the Goods imposed by this subsection does not authorize a breach of the peace or any injury to persons or property and Dealer will hold ACCI harmless from any claim arising from any injury to person or property or other breach of peace.
- in any non-card transaction, Dealer shall be deemed to warrant the Buyer’s true identity as an authorized user of the Goods.
- obtain the signature of the Buyer on the Account Agreements, and compare the signature on the Account Agreements if identification is uncertain or if Dealer otherwise questions the validity of the Buyer’s signature, contact ACCI for instructions. IDENTIFICATION OF THE BUYERS THE RESPONSIBILITY OF THE DEALER
- not present the Account Agreements to ACCI for funding until all Goods are delivered or installed or the services are performed to the Buyer’s satisfaction.
- deliver a true and completed copy of the Account Agreements to the Buyer at the time of the Sale.
- attach a copy of the invoice to the Account Agreements submitted to ACCI for funding.
- cooperate fully with ACCI to actively promote the program.
- satisfy all other requirements designated in any ACCI procedures or as may be required from time to time by ACCI. Dealer agrees that ACCI may change such procedures from time to time as it deems necessary or appropriate and such changes will be applicable to Dealer when ACCI gives Dealer notice thereof.
5. Home improvement Requirements. In addition to all other requirements with respect to the Accounts and Account Agreements, prior to funding of any Account Agreements to Dealer, Dealer covenants and agrees as follows:
- all Goods shall be delivered and properly installed and all services and work shall be fully completed to the Buyer’s satisfaction.
- Dealer shall furnish ACCI with completed and executed (i) Retail Installment Contract; a U.C.C.-1 Financing Statement in the form required by ACCI, and (ii) any other documents required by ACCI.
- upon ACCI’s request, Dealer shall furnish ACCI with completed and executed final mechanic lien waivers from Dealer and from all contractors, subcontractors, laborers, materialmen and others for all work performed or Goods delivered or installed by someone other than Dealer’s employees.
- upon ACCI’s request, Dealer shall furnish ACCI with a separately completed completion certificate on ACCI’s form signed by the Buyer(s) after all work has been completed to the Buyer’s satisfaction
- dealer shall deliver to the consumer the appropriate rescission and/or cancellation notices required by applicable law. ACCI shall have no obligation to fund the Sale until (i) the work is completed to the Buyer’s satisfaction; (ii) the applicable rescission and/or cancellation period has expired; and (iii) all required documentation for the transaction has been received by ACCI.
6. Additional Covenants of Dealer.
- General Dealer shall apply any policies regarding refunds equally to cash and credit Buyers. Dealer, if requested by ACC, shall provide ACC with true copies of any and all product and warranty information concerning the Goods covered by a Purchase. Dealer guarantees all performance and warranties and all service or similar agreements made by the manufacturer, Dealer or any other person relating to Goods and for services that are the subject of any Purchase, even if such performance, warranty, service or similar agreements are not immediately effective, and, unless such agreement provides otherwise, Dealer agrees to provide repairs and service to Buyer or other owner of the Goods or recipient of the services at Dealer’s usual rates or charges. Dealer agrees to perform warranty work on the Goods under any warranty still in force on the Goods transferred to a third party by a Buyer. Dealer shall provide ACCI with such information as ACCI shall deem necessary or appropriate with respect to the financial condition or otherwise of Dealer, and shall make available to ACC for examination at all reasonable times, the books of Dealer’s business pertaining to financing Goods. Dealer shall immediately notify ACCI of any material information of which it becomes aware with respect to any Account, including, but not limited to, the death, move from the service area, loss of employment, adverse change in financial condition or change in marital status of any Buyer, termination of an Account, the loss or theft of unauthorized use of any Goods, or any dispute or claim with respect to the Goods which were the subject matter of any Purchase. Dealer shall notify ACCI immediately if Dealer is no longer associated with Carrier Corporation or an affiliated entity of Carrier Corporation as an authorized dealer.
- Recovery of Goods on Defaulted Account, Dealer agrees that in the event of an uncured default of an Account Agreement, and upon a request by ACC to Dealer to recover the Goods, Dealer shall use its best efforts to recover all of the Goods. The obligation to recover the Goods imposed by this subsection does not authorize a breach of the peace or injury to persons or property and Dealer will hold ACCI harmless from any claim arising from any injury to person or property or other breach of the peace. ACCI shall pay Dealer $50.00 for recovery of the Goods. Dealer agrees to store and assist in the Goods for ACCI without charge until disposition of the Goods by ACCI.
7. Dealer’s Risk. Any Purchase consummated by Dealer which in the good faith judgment of ACCI (i) was fraudulent or subject to any claim of illegality, cancellation, rescission, avoidance or offset for any reason whatsoever, including, without limitation, negligence, fraud, misrepresentation, or dishonesty on the part of the Buyer or Dealer or its agents, employees, licensees, or franchisees, or that the related transaction is not a bona fide transaction in Dealer’s ordinary course of business, (ii) was evidenced by an Account Agreement which is not legible and, complete, or is not executed by the Buyer, or in which the Purchase is not as represented, warranted, or agreed therein, or for which an infirmity in documentation otherwise exists, (iii) was without ACCI’s approval if so required hereunder, (iv) was in violation of any of the rules governing Purchases, or (v) otherwise was without compliance with any applicable warranty or representation of Dealer contained in this Agreement or any applicable term or condition of this Agreement, or the Account Agreement, shall be at Dealer’s risk, and ACCI shall have no obligation to accept, or pay for, any Account Agreements representing any such Purchase, and shall have no liability to Dealer therefore; but ACCI shall, in its sole and absolute discretion, have the option of accepting the same upon investigation, but no such acceptance by ACCI of any such Account Agreements or Purchase shall be deemed a waiver of ACCI’s rights hereunder with respect to any other or subsequent Account Agreements or Purchase,
8. Delivery of Documents.
- Dealer will deliver to ACCI (in the manner and time specified by ACCI) with respect to each Account: the Buyer’s Application; the Retail Installment Contract; the U.C.C.-l. Financing Statement; the dealer’s invoice/sales form; the Account Agreements(s) signed by the Buyer evidencing the original and any subsequent purchases, the completion certificate, the cancellation and/or rescission slips, and any other documentation relating to Applications, Accounts, and Purchases as agreed to by the parties.
- If Dealer is unable to deliver a document requested by ACCI within the time frame specified by ACCI (“Account Balance”) for whatever reason, ACCI may immediately Chargeback the Account and/or Account Agreements. The Chargeback amount of any Account and/or Account Agreements shall be a sum equal to the then unpaid balance due thereon (including any accrued but unpaid finance charges thereon), plus any and all costs (including reasonable attorney’s fees) incurred by ACCI in connection with enforcing this Agreement.
- Basis for Chargebacks. Upon the occurrence of any one of the following. ACCI may Chargeback to Dealer any Account and/or Account Agreements that ACCI has accepted from Dealer, and Dealer shall promptly pay ACCI the amount represented by the Account and/or Account Agreements, plus interest accrued and unpaid as of the date of the Chargeback, plus ACCI’s out-of-pocket costs incurred, if any, in attempting to collect on the Account and/or Account Agreements, but less any acquisition charge, if any, previously paid by Dealer to ACCI,
- items that are listed in Section 7 above as “Dealer’s Risk” which are discovered after the Account has been established and/or the Account Agreements has been funded by ACCI;
- the Account Agreements is a duplicate of an item previously paid;
- the Buyer disputes the execution of the Account Agreements, or the sale, delivery, quality, or performance of the Goods or services:
- the Buyer contends that it did not authorize the transaction represented by the Account Agreements or did not authorize the transaction in the amount shown on the Account Agreements;
- the Buyer alleges that a credit adjustment was requested and refused, or that a credit adjustment was issued by Dealer but ACCI did not receive the credit,
- the price of the Goods or services shown on the Account Agreements differs from the amount shown on the receipt delivered to the Buyer at the time of the transaction,
- ACCI determines that the Account Agreement is not for Goods as defined herein;
- Dealer did not obtain Authorization from ACCI for the transaction represented by the Account Agreement,
- The Account Agreements is prepared and submitted by a party not authorized to participate in the Program, which resulted from the Dealer’s failure to protect proprietary information related to the Program;
- Dealer breaches any one or more of the warranties or representations contained in this Agreement, or ACCI determines that Dealer has not complied with any term, condition, covenant, warranty, or other provision of this Agreement or any other agreement between the parties, or any of ACCI’s procedures, in connection with the Account Agreements or the transaction to which it relates; or
- If Buyer asserts a claim or defense based upon, or fails to pay because of an alleged breach of warranty, alleged misrepresentation with respect to the Goods sold, or alleged failure of Dealer to provide adequate service to Buyer,
- ACCI determines that the Account Agreement is fraudulent or that the related transaction is not a bona fide transaction in Dealer’s ordinary course of business, or is subject to any claim of illegality, cancellation, rescission, avoidance, or offset for any reason whatsoever, including without limitation negligence, fraud, of dishonesty on the part of Dealer or any of its agents or employees.
- Resolution and Payment. Dealer is required to resolve any dispute or other of the circumstances described above in (a) of this Section to ACCI’s satisfaction within fifteen (15) days of notice of Chargeback or Dealer shall pay to ACCI, as the case may be, the net balance due thereon, and other fees and charges provided for in the Account Agreement. Upon Chargeback to Dealer on an Account Agreement, Dealer shall bear all liability and risk of loss associated with such Account Agreements or Account, or the applicable portion thereof, without warranty by, or recourse or liability to ACCI. ACCI may deduct amounts owed to ACC under this subsection from any amounts owed to Dealer under this Agreement. If Dealer fails to pay the purchase price to ACCI within fifteen (15) days of ACCI’s demand therefore, ACCI may, at its option, demand immediate purchase by Dealer of all Accounts and Account Agreements (for their current net balances) arising from Purchases from Dealer. If Dealer and a Buyer resolve a billing inquiry or dispute on a Sale which has been charged back, and ACCI is permitted by law, to rebill the Buyer for all or a portion of the dispute amount, ACCI will repay Dealer for that portion of the chargeback which ACCI can rebill the Buyer, provided that Dealer requests such repayment within ninety (90) days from the date of the Chargeback. However, if due to federal and/or state laws, ACCI is not able to rebill a Buyer for all or a portion of a disputed transaction, ACCE will not be required to repay Dealer for Chargeback.
- Excessive Chargebacks. If the aggregate number of Account Agreements subject to Chargeback exceeds 10% of the total number of Purchases submitted by Dealer with respect to an individual Dealer location in any calendar quarter (“Excessive Chargebacks”), this shall be deemed a material breach of this Agreement and ACCI has the right, in its sole discretion, to terminate this Agreement. Alternatively, ACCI may, at its option, demand immediate purchase by Dealer of all Accounts and Account Agreements from Dealer for the current net balances thereof. The terms and provisions of this subsection shall survive the termination of this Agreement.
- Adjustment of Accounts/Account Agreements. Upon payment to ACCI of the amount of the Chargeback, the Accounts and/or Account Agreements shall be transferred by appropriate endorsement or assignment to Dealer, but all such endorsements and assignments shall be without recourse upon ACCI and without warranties, express or implied on the part of the ACCI. Dealer agrees that it shall comply with all terms and conditions of the Buyer’s Agreement for Accounts and/or Account Agreements that are charged back to Dealer and shall indemnify ACCI for all claims arising out of or related to Dealer’s actions with respect to the Accounts and/or Account Agreements after Chargeback, including without limitation, servicing and collection of the Accounts and/or Account Agreements, ACCI’s right to demand Chargeback is not waived because of its failure to make prompt Chargeback. ACCI’s right to Chargeback any Account and/or Account Agreements as set forth herein shall not be affected by any modification by ACCI of any Account and/or Account Agreements. With respect to any Account and/or Account Agreements for which ACC Chargebacks to Dealer hereunder, Dealer further waives any right to require ACCI (i) to proceed against any person; (ii) to proceed against or exhaust its rights with respect to collection of any of the Accounts, (iii) to obtain any determination by any court or governmental agency with respect to any branch of the elements or events constituting any breach; or (iv) pursue any other remedy in ACCI’s power as against any other persons or property. Dealer understands and agrees that the obligation on its part to purchase Account Agreements from ACC does not preclude ACCI from enforcing any other remedies available to it.
10. Payments to Buyer. Dealer shall not accept payment by any Buyer on an Account. Any payments so accepted in violation of this provision shall be held in trust for ACCI, and shall be delivered within three (3) calendar days to ACCI in the form received except for any necessary endorsements, and shall not be subject to any offset for any amounts due Dealer hereunder. Dealer authorizes ACCI to endorse the name of Dealer when any form of payment requires such endorsement and Dealer has failed to do so or has done so improperly or inaccurately.
11. Returns, Buyer Complaints.
- Returns. Dealer agrees to maintain a fair Return policy and to make adjustments with respect to Purchases and Accounts where appropriate. If Dealer (i) accepts any Goods for Return; (ii) permits the termination or cancellation of any services; or (iii) allows any price adjustment, then Dealer shall not make any cash refund, but shall complete and deliver promptly to ACCI a Credit Slip signed by Dealer and evidencing the full amount of the refund or adjustment, and shall deliver to the Buyer a true and complete copy of the Credit Slip at the time the refund or adjustment is made. Dealer shall include on any Credit Slip a brief description of the Goods returned, services terminated or canceled, or refund or adjustment made, together with the date and amount of the credit, in sufficient detail to identify the transaction. The amount of a Credit Slip cannot exceed the amount of the original transaction as reflected on the Account Agreements. The Credit Slip must reflect the full amount of the refund or adjustment, and cannot be reduced by any charge paid by Dealer to ACCI on the original Account Agreements. Dealer may process a Credit Slip for a Buyer only if Dealer has previously completed the related purchase transaction with the same Buyer. If twenty-five percent (25%) or more (in number) of such Returns in any calendar year are not delivered within the time and in the manner provided, ACCI may, at its option, demand immediate purchase by Dealer of all Accounts and related Account Agreements (for their current net balance) received from Dealer and then in ACCI’s possession and for terminate this Agreement.
- Buyer Complaints. Dealer acknowledges that, under applicable law, ACCI may be subject to claims and defenses of Buyers arising out of Purchases. Dealer agrees that it will immediately notify ACCI of any such claim or defense asserted, or any complaint which may become such a claim or defense, when the Dealer receives notice or otherwise becomes aware thereof, as well as the action taken by Dealer to resolve this dispute. Dealer shall make a good faith attempt to resolve any dispute with respect to the quality, performance, condition, or otherwise of the Goods or services that are the subject of any Purchase. Dealer shall keep written complaints and a log of oral complaints for twenty-five (25) months. Dealer shall immediately notify ACCI if Dealer is subject to any investigation or action arising from alleged violations of law. Dealer agrees to indemnify and hold ACCI harmless from any claim, loss, damages, or liability, including attorney fees and costs, incurred by ACC in connection with any such complaint, claim, defense, or dispute, or the failure of Dealer to notify ACCI thereof as provided herein.
- Fair Credit Billing Act Compliance. Dealer agrees to fully and promptly comply with all requests from ACCI for information and assistance in connection with ACCI’s resolution of any billing error dispute with any Buyer.
12. Warranties and Representations of Dealer. Dealer makes the following warranties and representations, with the understanding and agreement that ACCI shall have relied upon such warranties and representations notwithstanding any inspection or knowledge on its part of
anything inconsistent therewith:
- Dealer is and will continue to be a bona fide business entity, duly licensed, organized, qualified and validly existing in good standing under all applicable laws, with all requisite power and authority to carry on its business where and as now conducted, to execute and perform this Agreement, and to deliver Accounts and Account Agreements to ACCi hereunder,
- With respect to each Account or Account Agreements thereunder at the time of delivery of the same to ACCI, Dealer will provide ACCI with clear title to the Account and all Account Agreements thereunder, and has the right and authority to provide the same to ACCI free and clear of any lien, security interest, encumbrance, or claim whatsoever.
- No representation or warranty by Dealer contains or will contain any untrue statement of a material fact, or omits or will omit to state a material fact necessary to make the statements contained therein not misleading, and all representations and warranties of Dealer survive this Agreement.
- The execution, delivery and performance of this Agreement and all documents to be delivered by the Dealer will not violate the terms of conflict with or result in the breach of or constitute a default under any agreement to which Dealer is a party or by which Dealer is bound.
- Accounts. With respect to any Account.
- The Account is genuine, legally valid, and a binding and enforceable agreement, and does not contain any forged or unauthorized signature, and all Buyers were competent and had the capacity to contract and are not employees or principals or a relative of any employee or principal of Dealer,
- All statements of fact, all information concerning Buyer, and all statements made by Buyer in connection with Buyer’s Application for, and the opening of the Account are true and correct in all respects, and do not omit or fail to disclose any materials facts, and Dealer (including any of Dealer’s agents, employees, salespersons, or officers) has not advised or requested Buyer or any other person to misstate, conceal or fail to disclose any information; and
- Dealer has fully complied with, the Account is valid under, and there are no violations of any and all applicable laws, regulations, ordinances, orders, consent decrees or the like governing consumer credit transactions, advertising or the Dealer specifically or any other aspect of the application or Account Agreement for opening and establishment of the Account, and Buyer was given copies of all documents required by law or otherwise to be given to Buyer at the times such copies are required by law or ACCI in its procedures to be so given to Buyer.
- Purchases. With respect to any Purchase and the Account Agreements related thereto, at the time of such Purchase and thereafter.
- The Purchase was a bona fide sale of Goods and/or services to the Buyer by Dealer, all Goods were delivered (or at the time of the Purchase, arranged to be delivered and actually later delivered) and/or services performed (or at time of the Purchase, arranged to be performed and actually later performed) to the acceptance and satisfaction of Buyer, or delivery receipt was signed by Buyer after completion or delivery, and there are no unpaid bills for labor or materials that might give rise to any liens by operation of law or otherwise.
- ACCI’s right to money due and to become due for the Purchase is not subject to any defense (except payment), offset, counterclaim or recoupment whatsoever (including, but not limited to, lack or absence of consideration, fraud, misrepresentation, any unfair or deceptive act or practice, or any breach of warranty or guarantee with respect to the Goods and/or services) by or on behalf of the Buyer, and there are no undisclosed agreements, concessions, claims or litigation of any nature whatsoever affecting any Purchase, and ACCI’s security interest in Goods will be prior to any other lien or encumbrance and enforceable against any other persons.
- Any downpayment was made in cash and/or trade-in allowance and no note, loan, post-dated check, or other form of deferred obligation was taken in connection with such downpayment (other than any deferred downpayment authorized by ACCI and fully disclosed in the Account Agreements), and no portion of any downpayment was or will be made by Dealer or any person other than the Buyer.
- Neither Buyer nor any other person has exercised nor shall exercise at any time any right of rescission or cancellation of the Purchase.
- The sale and transaction surrounding the Purchase, including but not limited to sale of insurance and extended warranties, and any disclosures in connection, therewith were made in full compliance with all applicable law and procedures established by ACCI and of which Dealer was notified in writing.
- Dealer has fully complied with all rules or other provisions governing Purchases set forth in this Agreement or otherwise established from time to time by ACC procedures. (vii) The identification of the Purchase and the amounts shown on any Account Agreements are bona fide, true, correct and genuine, and have not been altered or misstated, and the Goods delivered and/or services performed are the identical and actual Goods or services described in the Account Agreements, and the Account Agreements represents a bona fide obligation as described therein.
- The Buyer’s signature on the Account Agreements is genuine and not forged and was made by the Buyer whose signature it purports to be, and Dealer has obtained a driver’s license or equivalent photographic identification verifying the Buyer’s identity and has noted the Buyer’s driver’s license number or other appropriate identification number or source of identification on the Account Agreements.
- By Dealer. Dealer agrees to indemnify ACCL, including its officers, employees, directors, and agents, and hold it harmless from, against and in respect of any damage, liability, loss, deficiency, expense, and attorney fees and other costs of litigation, including those arising from advertising, sale of insurance and the enforcement of this indemnification (“Damages”), and agrees to reimburse ACCI on demand for such Damages resulting from (a) any and all liabilities of Dealer of every kind, nature and description, absolute and contingent, arising at any time from or in connection with the business of Dealer and the sale of Goods and services to buyers; (b) Dealer’s failure to comply with the terms and conditions of this Agreement and any procedures with respect to the Program, including without limitation failure to use and complete proper documentation; (c) the death or injury to any person or the loss, destruction or damage to any property arising out of the design, manufacture of furnishing by Dealer of any Goods, warranties or services purchased by Buyers; (d) any claim or complaint by a consumer that Dealer has violated the Equal Credit Opportunity Act, Truth in Lending Act, or any other act and related applicable laws and regulations; and (e) any untrue or incorrect representation or breach of any warranty or representation of Dealer contained in this Agreement or the nonfulfillment of any agreement or covenant of Dealer contained in this Agreement. This indemnification shall include, but not be limited to, any class action or alleged class action which is at any time brought by or on behalf of one or more persons. Dealer agrees to notify promptly ACCI of the making of any claim or the commencement of any action by a person other than ACCI which may give rise to an obligation of Dealer under this Section. ACCI shall be subrogated to any causes of action or other rights that Dealer may have against any manufacturer or other person or entity to the extent necessary to insure that ACCI is fully indemnified. ACCI may deduct any amounts incurred by ACCI under this Section from amounts owed Dealer under this Agreement.
- By ACCI. ACC shall be liable to and shall indemnify and hold harmless Dealer, including its officers, employees, directors and agents from any losses, damages, claims or complaints incurred by Dealer arising out of any claim or complaint by a Buyer with respect to anything wrongfully done or not done by ACCi in connection with such Buyer’s Account. Notwithstanding the foregoing, the indemnification by ACCI shall not apply to any claim or complaint relating to the failure of Dealer to resolve a billing inquiry or dispute with a Buyer.
- Notice of Claim. In the event that ACC or Dealer shall receive any claim or demand or be subject to any suit or proceeding of which a claim may be made against the other under this Section, the indemnified party shall give prompt written notice thereof to the indemnifying party and indemnifying party will be entitled to participate in the settlement or defense thereof with counsel satisfactory to indemnified party at the indemnifying party’s expense. In any case, the indemnifying party and the indemnified party shall cooperate (at no cost to the indemnified party) in the settlement of defense of any such claim, demand, suit or proceeding.
- Survival. The terms of this Section shall survive the termination of this Agreement.
14. Automated Funding.
- Dealer authorizes ACCL, by electronic means if utilized by ACCL, to initiate credit entries to Dealer’s account described in the ACH (Automated Funding) Set-up Procedures and information. Sheet and to initiate debit entries and adjustments for any-discount due ACCI from Dealer, for any offset to which ACCI is entitled, and for any credit entries made to such account through error on the part of ACCI or as the result of incorrect information provided by Dealer, and authorizes the bank or other financial institution named in the ACH (Automated Funding) Set-up Procedures and Information Sheet to make such creditor debit entries to specified account. This Authorization shall remain in effect for ninety (90) days after the Agreement is terminated, and if such account is closed prior to the termination of the ninety (90) day period, all amounts due ACCI shall be immediately due and payable to ACCI.
- Dealer agrees to indemnify, defend and save harmless ACCI of, from and against any claims, causes of action, loss, liability, cost and expenses (including attorney’s fees) which Dealer or any other person or entity might have or claim to have against ACCI as a result of or in any way related to the acts or omissions of any bank or other financial institution handling the transfer of funds pursuant to this Authorization.
- if ACCI initiates a credit entry in an amount greater than the amount due Dealer and the funds transfer is completed. Dealer agrees to reimburse ACCI for the amount by which the amount received exceeds the amount due, which reimbursement may be done by a debit entry or adjustment to the Dealer’s account as described above.
- The terms of this Section shall survive the termination of this Agreement,
15. Equipment. ACCI may supply, but is not required to, to Dealer one or more point of sale devices (“Equipment”) used for credit application processing in Dealer’s place of business subject to the terms of this Agreement. Dealer agrees not to reproduce any software provided to Dealer under this Agreement, and it is agreed that any software and instruction manuals provided to Dealer contain confidential information which is proprietary to ACCI. Dealer will be responsible for all costs related to repair and/or replacement of Equipment resulting from Dealer’s misuse of the Equipment. ACCI will provide normal maintenance and replacement units for malfunctioning Equipment. Upon ACCI’s request Dealer will provide a dedicated telephone line to transmit the data entered on the ACC’s remote Equipment to the ACCI’s service center, ACCI agrees to provide a toll-free telephone number for Dealer to use in transmitting the data on the Equipment to the ACC’s service center. Upon termination of the Agreement, Dealer will promptly return to ACCI all Equipment supplied by ACCI hereunder in the same condition as received, except for reasonable wear; otherwise, Dealer will make prompt payment to ACCI for the replacement value or cost to repair said Equipment.
16. Parties. The term “Dealer” as used in this Agreement includes all parties who sign this Agreement, other than ACCE or ACCI’s affiliated corporations. If more than one person and/or legal entity is included within the term “Dealer”, each such person and/or legal entity is obligated jointly and severally under this Agreement. This Agreement shall inure to the benefit of and be fully enforceable by, any corporation affiliated with ACCI with respect to any Account and for Account Agreements purchased by such affiliated corporation from Dealer, or with respect to any Account and/or Account Agreements originated by Dealer and held or acquired at any time by any affiliated corporation through merger, or otherwise. Any corporation under ultimate common ownership with ACCI shall be considered to be an affiliate of ACCI under this Agreement, Dealer and ACCI are in the position of independent contractors, and in no circumstances shall either party be deemed to be the agent or employee of the other. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partner or joint venturer or an association for profit between Dealer and ACC. Any amounts ever owed by Dealer pursuant to this Agreement represent contractual obligations only and are not a loan or debt.
17. Offset by ACCI. In addition to any other remedies available to ACCI under this Agreement, Dealer agrees that ACCI has the right to offset against any amounts owed to ACCI by Dealer under the provisions of this Agreement or otherwise, including, but expressly not limited to, the purchase price of any Account Agreements Dealer is required to purchase due to fraud or otherwise, any payments received by Dealer in connection with the Account Agreements purchased by ACCI, and any amounts paid by ACCI to Buyers as a result of complaints or disputes relating to the Goods and/or services and/or insurance furnished by Dealer or the servicing thereof.
- This Agreement shall continue in full force and effect from the Effective Date (as defined below) until terminated by:
- Either party upon thirty (30) days’ prior written notice given to the other party.
- ACCI upon a change in the financial condition of the Dealer or substantial breach by Dealer of the terms and conditions of this Agreement.
- Upon notice to ACCI that Dealer is no longer associated with Carrier Corporation or its affiliated companies as an authorized dealer or authorized participant in the Program.
- ACCI, upon notice to Dealer, may elect to terminate the acceptance of the transaction at a particular Dealer location if at such location there are Excessive Chargebacks, high fraudulent activity or other course of business conduct that is injurious to the business relationship between Dealer and ACCI. In addition, ACCI may terminate this Agreement upon thirty (30) days prior notice to the Dealer if the termination of a particular Dealer location materially affect(s) the volume of Purchases generated by such Dealer.
- Upon termination of this Agreement, Dealer will promptly submit to ACCI all Purchases, Account Agreements, credit and other date made through the date of termination. ACCi is not liable to Dealer for any director consequential damages that Dealer may suffer as a result of ACCI’s termination of this Agreement.
- Any such notice or termination shall not affect any obligation of either party hereto under the Agreement with respect to Account Agreements accepted by ACCI prior to such termination; provided that ACCI’s obligation to pay participation fees, if any, shall cease on termination of this Agreement.
- Liability of Dealer. The liability of Dealer hereunder shall be absolute and unconditional and shall not be subject to any reduction, setoff, counterclaim or recoupment and shall not be limited or avoided on account of any good faith action or inaction of ACCI with respect to any Account and/or Account Agreements.
- Choice of Law. This Agreement shall be controlled, construed and enforced in accordance with the substantive laws of the State of Texas.
- Integration. This Agreement represents the entire agreement and understanding of the parties and no modification hereof or additions hereto have been agreed to, or will be binding upon any party or its successors or assigns, unless specifically set forth in writing in a document executed by the parties or otherwise referred to herein.
- Assignment. This Agreement shall be binding upon the parties hereto and their successors and assigns. This Agreement and all rights hereunder may not be assigned by Dealer without the prior written consent of ACCI. ACCI has the right to assign this Agreement and any Accounts or Account Agreements thereunder at any time to an affiliated person.
- Change in Control. Dealer agrees to send ACCI at least thirty (30) days prior written notice of any changes in Dealer’s name or location, any material change in ownership of Dealer’s business or any change in Account Agreements or Credit Slip information concerning Dealer.
- Nonwaiver. Dealer’s liability under this Agreement, including without limitation under Section 9 shall not be affected by any settlement, extension, forbearance, or variation in terms that ACCI may grant in connection with any Account Agreements or Account or by the discharge or release of the obligations of the Buyer(s) or any other person by operation of law or otherwise. Dealer hereby waives any failure or delay on ACCI’s part in asserting or enforcing any right that ACC may have at any time under this Agreement or under any Account. Failure (intentional or inadvertent) by ACC to file or record a security interest in Goods that are the subject matter of any Purchase shall not impair ACCI’s rights nor be grounds for avoiding Dealer’s obligations under this Agreement. Repossession by ACC of any Goods that are the subject matter of any Purchase, whether with or without notice to Dealer, shall not impair ACCI’s rights nor be grounds for avoiding Dealer’s obligation under this Agreement.
- Force Majeure. Neither party to this Agreement shall be liable to the other by reason of any failure in performance of this Agreement in accordance with its terms if such failure arises out of a cause beyond the control and without the fault or negligence of such party. Such causes may include but are not limited to acts of God, of the public enemy or of civil or military authority, unavailability of energy resources, system or communication failure, delay in transportation, fires, strikes, riots or war. In the event of any force majeure occurrence, the disabled party shall use its best efforts to meet its obligations as set forth in this Agreement.
- Confidentiality. Dealer will keep confidential and not disclose to any person or entity, except to employees, officers, and agents of Dealer who are engaged in the implementation and execution of the Program, all information, software, systems and data, that Dealer receives from ACCI or from any other source, relating to the program and matter which are subject to the terms of this Agreement, including, but not limited to Buyer names and addresses or other Account information, and shall use, or cause to be used such information solely for the purposes of the performance of Dealer obligations under the terms of this Agreement. The provisions of this Section shall survive the termination of this Agreement.
- Amendments and Supplements. ACCI may amend this Agreement upon ten (10) days prior notice to Dealer if such modification is reasonably determined by ACCI to be required by any state or federal law, rule, regulation, governmental or judicial order, opinion, interpretation or decision. Reference herein to “this Agreement” shall include any schedules, appendices, exhibits, and amendments thereto, Any amendment or modification to this Agreement must be in writing and signed by a duly authorized officer of ACCI to be effective and binding upon ACCI, no oral amendments or modifications shall be binding upon the parties.
- Rights of Persons. Not a Party. This Agreement shall not create any rights on the part of any person or entity not a party hereto, whether as a third party beneficiary or otherwise.
- Section headings. The section headings in this Agreement are for reference only, are not a substantive part of this Agreement and are not to be used to affect the validity, construction or interpretation of this Agreement or any of its provisions,
- Severability. The fact that any provision of this Agreement may prove invalid or unenforceable under any law, rule, or regulation shall not affect the validity or enforceability of any other provision of this Agreement.
20. Acceptance by ACC. This Agreement shall not be binding upon ACCE in any manner whatsoever unless signed by an officer of ACCI or its duly authorized agents or attorneys, and becomes effective as of the Effective Date.
IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as of the Effective Date shown below.
AC CREDIT, INC,
P. O. BOX 65056
Lubbock, TX 79464
By: Carrol Blackwell, Secretary / Treasurer