Operating Instructions

These OPERATING INSTRUCTIONS (the “Operating Instructions“) constitute the operating instructions for each Merchant’s participation in the Program and are governed by the terms and conditions of the applicable Merchant Agreement between MOMNT TECHNOLOGIES, INC., a Delaware corporation (“Momnt“), and you (“Merchant“) (as the same may be amended from time to time) (with respect to each such Merchant, the “Agreement“).  All capitalized references not defined herein shall have the same meaning as set forth in the Agreement.

1. Overview of Merchant’s Obligations and Responsibilities under the Program.

  • (a) Merchant’s obligations and responsibilities under the Program include:
  • ~(i) ensuring all of Merchant’s Agents involved with the Program are advised of the requirements related to the offering of the Program to Merchant’s customers and that Merchant’s Agents having sales, promotion, customer-facing, or finance responsibilities have completed all orientation and training related to the Program as required by Momnt from time to time;
  • ~(ii) promoting the Program in a legally compliant, accurate, complete, unbiased, and fair manner and maintaining commercially reasonable policies and procedures to ensure ongoing compliance with Applicable Law, the Agreement, and these Operating Instructions;
  • ~(iii) ensuring that Loan proceeds are used only in connection with the purchase of eligible Offerings;
  • ~(iv) taking best efforts to detect and prevent fraudulent activity by a prospective Borrower (including an applicant), Borrower, or Merchant (including any of its Merchant’s Agents) with respect to a Loan or Loan proceeds, including verifying the identification of each individual applying for a Program credit product at the time of a sale of Offerings and ensuring that there is no discrepancy between the documents Merchant relies on to fulfill its obligation to verify the identity of such individual under Section 4(a) of these Operating Instructions and such individual’s physical appearance or other Application information.
  • ~(v) notifying Momnt immediately upon becoming aware of any actual, threatened, or alleged fraudulent activity (including identity theft) and assisting and cooperating with Momnt in order to respond and resolve any such fraudulent activity;
  • ~(vi) limiting Merchant’s discussions with each Borrower or prospective Borrower (including each applicant) with approved materials or expressly authorized information that are true and accurate statements about the Program, such as the telephone number to contact Momnt and the products offered regarding the Program, Momnt’s address, and certain applicable codes or other identification numbers, and conducting such discussions in English or Spanish only;
  • ~(vii) maintaining any information Merchant receives regarding each Borrower or prospective Borrower (in such capacities) or a Loan as strictly confidential;
  • ~(viii) maintaining control over Offerings;
  • ~(ix) providing to Momnt in a timely manner all information relating to Merchant’s participation in the Program and any Borrower and prospective Borrower as set forth herein and otherwise requested by Momnt or a Lender (as notified by Momnt)—it being understood that Momnt and Lenders may share any such information with any applicable sponsor referring Merchant;
  • ~(x) referring Program-related questions from Borrowers or prospective Borrowers to Momnt or public-facing Program information available on Momnt’s website;
  • ~(xi) with respect to any documents or forms provided to, or to be executed by, a Borrower or prospective Borrower or which constitute a disclosure required by Momnt or under Applicable Law in connection with the Program, only using such documents and forms provided by Momnt to Merchant, or approved in writing by, Momnt (and only using the latest version thereof) and not modifying any such documents or forms without Momnt’s prior written consent; and
  • ~(xii) facilitating its customers’ and prospective customers’ Applications for Loans in compliance with all Applicable Laws, the Agreement, and these Operating Instructions.
  • (b) In addition to Merchant’s other obligations and responsibilities, Merchant shall not:
  • ~(i) prepare or disseminate any written materials regarding the Program other than those provided or approved in writing by Momnt;
  • ~(ii) discuss with a prospective Borrower the likelihood of his or her approval for a Loan;
  • ~(iii) provide any misleading, confusing or incomplete information regarding the Program, including applicable interest rates or any terms or conditions of a Loan under the Program;
  • ~(iv) pull, request, or obtain any credit reports on prospective Borrowers or Borrowers;
  • ~(v) require, add, or charge any fees, finance charges, or interest to prices charged to Borrowers for the Application for or use of a Loan;
  • ~(vi) charge a different price or provide varying terms and conditions for Merchant’s goods or services for those customers receiving a Loan as compared to those customers that are not receiving a Loan;
  • ~(vii) discriminate among prospective Borrowers (including applicants) or Borrowers based on any prohibited basis under Applicable Laws;
  • ~(viii) authorize, consent to, enter into any agreement, make any representation or warranty, or take any action on behalf of any other person (including without limitation any of its customers);
  • ~(ix) enter information into, suggest information, sign, or otherwise assist or help any consumer complete any Application, any forms, or terms intended for the consumer (including onscreen forms or terms) or Loan Documents in lieu or on behalf of the consumer;
  • ~(x) complete the Application or agree to any terms on behalf of an applicant or Borrower’s or provide any erroneous, fake, or unauthorized information on applicants or Borrowers, including without limitation through the use of fake, unauthorized, or fictitious names or information (for example, Merchant will not allow Merchant’s or any of Merchant’s Agents own email addresses, mailing addresses, mobile numbers, or other contact information to appear in a consumer’s Application); or
  • ~(xi) discourage any person from completing an Application.
  • (c) In the event that Momnt or a Lender believes Merchant has failed to comply with the Agreement or the Operating Instructions or that any illegal or fraudulent conduct has or is likely to occur related to or arising from Merchant’s participation in the Program, Momnt may suspend Merchant’s participation in the Program and take such other action as it deems appropriate, including terminating the Agreement.

2. Promotion of the Program.

  • (a) Merchant agrees to promote the Program in a commercially reasonable manner and in full compliance with all Applicable Laws. Any written material referring or relating to the Program, including the fact that Merchant participates in the Program or specific Loan credit terms or credit products Merchant accepts, shall be prepared or furnished by Momnt or, if prepared by Merchant, shall be subject to review and approval by Momnt in advance of being used by Merchant. Any such review and approval shall be limited to the review and approval of Program-specific representations and statements and shall not be construed as a review or approval of any advertising or solicitation materials for any other purpose or for compliance with any other provisions of any local, state or federal laws not related to the Program.

  • (b) Merchant shall not require, through a surcharge, an increase in price or otherwise, any Borrower to pay any fees as a consequence of Borrower applying for or using his or her Loan to pay Merchant. This also means that Merchant shall not increase the purchase price or add any additional fees as a result of Borrower’s use of the Loan to purchase the Offerings. Merchant may not charge Borrower any part of any charge or fee imposed by the Program on Merchant, provided that Merchant may treat such fees as overhead to be distributed across all customers regardless of whether the customer uses a Loan to pay for his or her purchase from Merchant.

  • (c) During the term of the Agreement, Merchant shall not issue, or arrange to issue, to prospective Borrowers any other third-party financing programs unless Merchant has first sought a Program Loan for such prospective Borrower.

3. Loan Approval Processing.

For any Loan, (i) there may a delay in funding of the Loan or payment to Merchant for up to three (3) business days and (ii) Lender may withdraw any previously issued Loan approval prior to funding of the Loan, which Loan approvals, unless earlier withdrawn, shall automatically expire if not funded by Lender at the end of such three (3) business day window.

4. Eligible Sales Transactions.

  • (a) Merchant must verify the identification of each individual for which it is presenting an Offering Request at the time of sale by obtaining a government-issued photo identification document. In the event Merchant identifies, or reasonably should identify, a discrepancy between the individual’s identification documents used to fulfill Merchant’s obligations under this subsection and the individual’s physical appearance, Merchant shall not submit an Offering Request to the Program with respect to any such individual and shall promptly inform Momnt.

  • (b) All transactions shall be evidenced by an Offering Request. Merchant shall complete the Offering Request in accordance with the Agreement and the Operating Instructions. Momnt, as administrator of the Program, in its sole discretion, may grant, deny, or revoke any Offering Request and may restrict or condition payment to Merchant in respect of any Borrower. Neither Momnt nor Lender shall be responsible, however, for any delay in funding a Loan caused by a merchant processor or otherwise.

  • (c) With respect to each transaction, Merchant agrees to:
  • ~(i) enter legibly on the Offering Request sufficient information to identify the Borrower and Merchant, including Merchant’s identification number, and the amount and date of the transaction (and, by submitting the transaction, Merchant warrants the Borrower’s true identity);
  • ~(ii) transmit information relating to such transaction that include a description of all Offerings purchased in detail sufficient to identify the date of such transaction and the entire amount due for such transaction, including any applicable taxes (the “Invoice”) to Momnt for recordkeeping;
  • ~(iii) deliver a true and completed copy of the Invoice to the Borrower at the earlier of processing such transaction or the delivery of (or performance with respect to) the Offerings; and
  • ~(iv) present the Offering Request to Momnt for authorization only upon Borrower’s express written approval, provided that if such transaction is canceled or if the Offerings are canceled or returned, such Offering Request shall be subject to chargeback or refund.

  • (d) Merchant agrees that the submission of any transaction for authorization shall constitute a representation by Merchant that: (i) there is a valid Invoice for such transaction that complies with the terms of the Agreement and the Operating Instructions; and (ii) the transaction financed shall be for personal, family, or household purposes unless otherwise authorized in writing by Momnt.

  • (e) Merchant agrees that all extended warranties and service agreements it offers will comply with all Applicable Laws. Without diminution of any of the terms of the Agreement or these Operating Instructions, Merchant agrees that it will comply with all obligations under any such extended warranty or service agreement, whether underwritten by Merchant, an Affiliate, or a third party.

5. Customer Payments.

Given that all Loans originated are serviced by Momnt, or Lender, or a third-party loan service provider selected by Momnt from time to time, Merchant agrees that as between Merchant and Momnt, Momnt has the sole right to receive payments on Loans. Merchant agrees not to attempt to collect a Loan unless specifically authorized in writing by the Lender, as communicated by Momnt. Merchant agrees to hold in trust for the Lender any payment received by Merchant in respect of such Loan and to deliver such payment to Momnt, acting on behalf of the Lender and its servicer, together with the Borrower’s name, Account Number, and any correspondence accompanying the payment, within two (2) days of receipt by Merchant. Merchant agrees that Merchant shall be deemed to have endorsed, in favor of the Lender to which any such payment relates, any Borrower payments by check, money order, or other instrument made payable to Merchant that a Borrower presents to Momnt, and Merchant hereby authorizes Momnt or the third-party loan service provider selected by Momnt from time to time, on behalf of the Lender, to supply such necessary endorsements on behalf of Merchant. Merchant agrees that it shall not, directly or indirectly, make any payment on a Loan on behalf of a Borrower without the prior written approval of Momnt, acting on behalf of Lenders, and Momnt, in its sole discretion, shall have the right to immediately (a) suspend Merchant’s right to submit new referrals for funding transactions on approved Loans or refer new Applications or (b) terminate the Agreement in the event that Merchant fails to comply with this provision.

6. Additional Requirements.

As to each Application referral, Offering Request or other material presented or delivered in connection with the Program, and the transaction it evidences, Merchant agrees that it shall:

  • (a) verify (i) the identity of the customer, that the customer is of legal age and that the customer is competent to execute the Application, Loan Agreement, and transaction authorization at the time of the execution thereof; (ii) that the credit application, Loan Agreement, and Offering Request are bona fide and are actually made and agreed to by each person identified as an applicant or Borrower; (iii) that each Loan Agreement and Offering Request (A) will arise out of a bona fide sale of Offerings by Merchant and the express consent of Borrower, (B) will not involve the use of the Loan for any purpose other than for the purchase of the Offerings that are the subject of the Loan Agreement and Offering Request, which are truly and accurately described therein, are fit and merchantable for their intended purpose, will be delivered into the possession of the Borrower and any services so described will be performed, and that all installation (if applicable) will be completed in a proper and workmanlike manner to the Borrower’s complete satisfaction, and (C) represents Merchant will perform all of its other obligations to the Borrower’s satisfaction in connection with the transaction evidenced by such Offering Request; and (iv) that such transaction is and will be, in all respects, in compliance with these Operating Instructions, the Agreement, and all Applicable Laws;

  • (b) convey full and complete title to the Offerings, if any, to the Borrower;

  • (c) not take any adverse action against a prospective Borrower or Borrower because the prospective Borrower or Borrower is a member of a protected class, as defined by Applicable Law, or because the prospective Borrower or Borrower has chosen to use credit to finance the purchase;

  • (d) not engage in any practice that has or could have an impermissible negative or disparate impact on members of any protected class, including steering prospective Borrowers or Borrowers to more expensive or less favorable financing options because of the prospective Borrowers’ or Borrowers’ membership in a protected class;

  • (e) not violate any agreement it has with third parties and will advise Momnt promptly of any event that may adversely affect its prospects or continued operations;

  • (f) not participate in the Program to carry out activities that violate any Applicable Law, including, without limitation, any Consumer Protection Laws;

  • (g) render goods and/or services to Merchant’s customers in compliance with all Applicable Laws and any agreement with, disclosures provided to, and consents obtained from Merchant’s customers; and

  • (h) ensure that each agreement with a consumer will be voluntarily entered into by the consumer and each such consumer is not a minor and will have capacity to enter into the agreement.

7. Records.

  • (a) All data transmitted shall be in a medium, form, and format designated by Momnt under the Program. Any errors in such data or in its transmission by Merchant shall be the responsibility of Merchant, and any errors in such data or in its transmission by Momnt shall be the responsibility of Momnt. Electronic transmission shall be the exclusive means utilized by Merchant for the transmission of transaction data to the Program except to the extent otherwise provided by Momnt.

  • (b) Merchant shall maintain paper copies (when used) or copies of electronic images of Offering Requests and Invoices and other records pertaining to any Loan or transaction covered by the Agreement for such time and in such manner as Momnt, as the administrator of the Program, or any Applicable Law may require, but in no event less than seven (7) years from the date of the Offering Request. Within ten (10) days, or such earlier time as may be required by Momnt, of receipt of Momnt’s request, Merchant shall provide to Momnt the Offering Request, Invoice, or other transaction records, including evidence of an applicant’s or Borrower’s express consent to a transaction, and any other documentary evidence available to Merchant and reasonably requested by Momnt (i) to meet its obligations under Applicable Law or otherwise to respond to questions, complaints, lawsuits, counterclaims, or claims concerning Loans or requests from Borrowers or regulatory authorities, (ii) to provide any information in connection with Momnt’s pursuit, as administrator of the Program, of bad debt tax refunds, deductions, credits, or audit offsets (including providing copies of Merchant’s state sales and use tax returns), (iii) to ensure Merchant’s compliance with the Agreement, or (iv) to enforce any rights a Lender or Momnt may have against Merchant or a Borrower, including litigation by or against Momnt or such Lender, collection efforts and bankruptcy proceedings, or for any other reason.

  • (c) Merchant agrees to permit Momnt or Lenders upon Momnt’s reasonable notice to Merchant, Merchant’s books and records concerning Merchant’s participation in the Program or any transaction giving rise to any Offering Request or Loan and to provide Momnt or Lenders with such further information as may reasonably be required concerning Merchant’s participation in the Program or any transaction. Merchant authorizes Momnt and/or Lenders to obtain credit reports with respect to Merchant and, to the extent permitted by Applicable Law, to obtain credit reports individually with respect to all principals, partners, or owners of Merchant, for the purpose of qualifying Merchant’s business for participation in the Program and for evaluating Merchant’s business for continued participation in the Program. Merchant agrees that it is authorizing Momnt to obtain credit reports and instructing any consumer reporting agency to provide such report now and in the future for the purpose of evaluating Merchant’s business for future retention and participation in the Program. Merchant also agrees that, upon request, Merchant shall provide a copy of Merchant’s most recent financial statements, including Merchant’s balance sheets, statements of income and retained earnings, cash flows, and any accompanying notes, in reasonable detail and prepared in accordance with generally accepted accounting principles.

  • (d) Merchant will provide Momnt with all original or electronically reproducible copies of documents required to be retained under the Agreement upon request within five (5) Business Days, or such shorter time as required by the Agreement.