and TEAM HORNER GROUP, INC., a Florida corporation (“Company”).
WHEREAS, Contractor desires to participate in a residential home improvement loan program (the “Loan Program”) sponsored by Company and offered through EnerBank USA (“EnerBank”) under the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the representations, agreements and covenants contained herein, and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, Contractor and Company agree as follows:
1. SCOPE OF PARTICIPATION
- (a) Contractor shall mention the Loan Program to all of its prospective purchasers (“Customers”) of Eligible Improvements as described below.
- (b). Only improvements authorized by Company are eligible to be financed (“Eligible Improvements”). The list of Eligible Improvements will be provided by Company and may be revised by Company from time to time with notice to Contractor.
- (c) Under no circumstances may Contractor permit a third party, including any affiliate of Contractor, to use the Loan Program using Contractor’s name and/or Contractor’s EnerBank contractor number. Any such use or attempted use of the Loan Program by a third party may result in the immediate termination of Contractor from the Loan Program.
2. CONTRACTOR RESPONSIBILITIES
- (a) Complete the training provided by EnerBank related to the Loan Program prior to utilizing the Loan Program, and comply with the rules and regulations set forth any training materials provided by EnerBank.
- (b) Ensure all of Contractor’s employees are advised of the requirements related to offering the Loan Program to Customers.
- (c) Do not disseminate any public statements, notices, advertisements, circulars and other marketing materials relating to any part of this Agreement or the Loan Program (“Marketing Materials”) other than those provided or approved by Company and, if requested by EnerBank, (i) promptly provide to EnerBank copies of all Marketing Materials, including, without limitation, such materials used in print, on-line, social media, television and radio media, and (ii) make any required modifications to the Marketing Materials within a reasonable time after notification by EnerBank of the need to make any such modification.
- (d) Treat any information related to Customer’s loan under the Loan Program (a “Loan”) as confidential and refrain from disclosing it to any third party.
- (e) Refrain from discussing with any Customer their likelihood of Loan approval.
- (f) Refrain from taking any Loan application information from a Customer or pulling any credit reports on a Customer prior to the time that the Customer has been declined for a Loan by EnerBank.
- (g) Do not directly charge any Customer a fee related to a Loan (anticipated Loan fees payable to EnerBank should be built into overhead and included in cost estimates to all Customers regardless of whether they finance their project and should not be itemized as a loan fee or finance charge in any cost estimate provided to, or contract with, any Customer).
- (h) Do not make a funding request unless entitled to do so under your contract with the Customer.
- (i) Comply with all applicable laws and regulations related to the solicitation and sale of goods and services to Customers.
- (j) Maintain valid and up to date state required licenses, permits, approvals, orders and other authorizations associated with the sale and installation of the goods and services provided to its Customers (“State Licenses”) for each state in which its Customers reside and, at EnerBank’s request, provide to EnerBank copies of each such State Licenses.
- (k) Ensure that any subcontractor working on a project funded in whole or part by a Loan is properly licensed.
- (l) Verify the identity of all Customers prior to requesting funding under any Loan.
- (m) Do not offer a lower price for a project that is not financed under the Loan Program than the price for the same project that is financed under the Loan Program.
3. LOAN PROGRAM
- (a) Company and EnerBank shall establish from time-to-time the types of Loans to be available under the Loan Program. A complete description of each such Loan will be made available by EnerBank via its secure website or other secure method as determined by EnerBank from time to time.
- (b) EnerBank will make available a loan code for each available Loan via its secure website or other secure method as determined by EnerBank from time to time. The appropriate loan code must be provided by Customer during the application process in order to be eligible for the applicable Loan.
- (c) No Loan shall exceed 100% of the cost to the Customer of the equipment, home improvements and/or systems, and any related pre-paid warranty or service agreement, being provided by Contractor, together with related costs of installation
- (d) A lump sum, non-refundable fee may be charged to Contractor by EnerBank on any Loan closed except that such fee may be charged on each advance closed under any Loan that has multiple disbursements. A portion of the fee to be charged to Contractor for each Loan funded may be held by Bank and used to offset uncollected principal, interest and/or fees that are charged off on any Loans (“Loan Losses”), pursuant to the charge off provisions of the Bank’s Credit Policy. Approximately five (5) calendar days before the end of each month, EnerBank will update via its secure website or other secure method as determined by EnerBank from time to time the amount of the fee, including portions used to offset Loan Losses, for each available Loan type to be in effect for such Loans where the applicable Loan application is submitted during the next calendar month. The fee is due and payable by Contractor to EnerBank on the date the Loan closes (or the date any advance closes under a multi-disbursement Loan) according to the instructions set forth in the Fee Payment Authorization Form (annexed hereto as Attachment A) executed by Contractor in connection with this Agreement.
- (e) Certain counter-offer Loans (“YES Loans”) may be offered to Customers by EnerBank at the time Customer applies for a Loan with EnerBank if the Customer does not qualify for the Loan he/she applied for. There will be no loan code for YES Loans. The fee payable by Contractor to EnerBank for a YES Loan may be higher than the fee for the Loan such Customer applied for.
- (g) Contractor acknowledges that Loans are subject to the Trade Regulation Rule Concerning Preservation of Consumers’ Claims and Defenses (Holder in Due Course Rule), 16 CFR Part 433 (“Holder in Due Course Rule”). The Holder in Due Course Rule requires that the following language be included in all Loan documents:
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.
Consequently, Customers have the right to assert the same legal claims and defenses against EnerBank and any third-party lenders that may have originated a Loan (“Third-Party Lender”), and its and their assigns, as they could assert against Contractor. If a Customer notifies EnerBank or any Third-Part Lender that he/she/they have a complaint against Contractor, EnerBank, Company and Contractor will work together to attempt to resolve the complaint to the Customer’s reasonable satisfaction. If such complaint is not resolved to the Customer’s reasonable satisfaction within a reasonable period of time and EnerBank, in its reasonable, good faith judgement determines that the Customer is entitled to a reduction or elimination of the amount owed under the applicable Loan and/or reimbursement of amounts paid by Customer on such Loan as compensation for his/her/their claim or defense against Contractor (“Holder Rule Loss”), EnerBank or Third-Party Lender may modify the applicable Loan and/or reimburse amounts paid by Customer to so compensate the Customer and EnerBank will thereafter invoice Contractor for the Holder Rule Loss incurred. If for any reason Contractor does not reimburse EnerBank for any Holder Rule Loss within thirty (30) days of billing, Company shall be obligated to pay to EnerBank an amount equal to the applicable Holder Rule Loss. Contractor agrees to indemnify and make Company whole from and against any Holder Rule Losses paid to EnerBank by Company.
4. TERM AND TERMINATION
Either party to this Agreement may terminate this Agreement or Contractor’s participation in the Loan Program, at any time and for any reason. EnerBank shall also have the right to suspend or terminate Contractor’s participation in the Loan Program.
5. INDEPENDENT CONTRACTOR
This Agreement does not and shall not be construed to establish a partnership, joint venture, agency relationship or other form of business association between Contractor and Company. Contractor is not an agent of EnerBank and shall not act as an agent of EnerBank. Contractor has no authority to speak or act on behalf of EnerBank or legally bind EnerBank in any way.
6. AMENDMENT; ASSIGNMENT
The terms of this Agreement shall not be changed, superseded or supplemented, except in writing, signed by the parties hereto. This Agreement shall not be assigned without Company’s written consent. Any such attempted assignment without such consent shall be void and of no effect.
Contractor hereby agrees to indemnify and hold Company harmless with respect to any claims, expenses (including attorneys’ fees), liability or damages arising out of (i) any representation or warranty of Contractor contained in this Agreement being false or misleading in any material respect, (ii) the failure of Contractor to comply with any of its covenants contained herein, or any applicable federal, state, or local law, rule or ordinance, unless such failure was attributable to negligence, fraud or other misconduct of Company, its employees and agents, (iii) the negligence, fraud, or other misconduct of Contractor or any of its employees, subcontractors or agents, or (iv) any defect in the goods sold by Contractor or in any services performed in connection therewith, or any breach of any express or implied warranty in connection with any such goods or services.
The Contractor shall procure and maintain at its expense during the term of this Contract, the following types of insurance: General Liability, $1,000,000 each occurrence, $2,000,000 aggregate. Contractor shall provide Company with a certificate of insurance evidencing such insurance coverage as provided for herein and evidence of renewals thereof.
Contractor hereby agrees to indemnify and hold Company harmless with respect to any claims, expenses (including reasonable attorneys’ fees), liability or damages arising out of (i) any representation or warranty of Contractor contained in this Agreement being false or misleading in any material respect, (ii) Contractor’s failure to comply with any of its covenants contained herein, or any applicable federal, state or local law, rule, regulation or ordinance, unless such failure was attributable to the negligence, fraud or other misconduct of Company or any of its employees and agents, or (iii) the negligence, fraud or other misconduct of Contactor, its employees and agents. The provisions of this Section 7 shall survive termination of this Agreement. (iv) any defect in the goods sold by Contractor or in any service performed in connection therewith, or any breach of any express or implied warranty in connection with such goods or services.
The provisions of this Section 7 shall survive termination of this Agreement
8. ENTIRE AGREEMENT; GOVERNING LAW
This Agreement shall be construed in accordance with and governed by the laws of Florida, exclusive of principles of conflicts of laws. With respect to the subject matter hereof, this Agreement supersedes all previous representations, understandings and negotiations, either written or oral, and constitutes the entire agreement between the parties hereto. This Agreement is intended for the benefit of the parties hereto and does not grant any rights to any third parties unless otherwise specifically stated herein.
IN WITNESS WHEREOF,the parties have caused this Agreement to be executed by their duly authorized representatives as of the day first above written.