MARKETING AND SERVICING AGREEMENT

Transcription

1 MARKETING AND SERVICING AGREEMENT This Marketing and Servicing Agreement ( Agreement ) is entered into between the undersigned individual or entity identified below as the independent jeweler ( Merchant for the purposes of this Agreement) and Fortiva Financial, LLC ( Fortiva ), a Georgia limited liability company, with its principal place of business at Five Concourse Parkway, Suite 400, Atlanta, Georgia Each of Merchant and Fortiva may be referred to herein as a Party or collectively, the Parties. If Merchant is an individual, pronouns used in the Agreement to refer to Merchant as an entity shall be intended, deemed and construed to refer to Merchant as an individual. RECITALS WHEREAS, in the normal course of its business, Merchant engages in the retail sale of jewelry to consumers; WHEREAS, Fortiva is willing, under the terms and conditions set forth in this Agreement, to market and service certain consumer financing arrangements for Products according to the terms set forth herein; and THEREFORE, IN CONSIDERATION of the mutual promises, covenants, representations, warranties and obligations contained in this agreement, Fortiva and Merchant hereby agree as follows: 1. DEFINITIONS. For the purposes of this Agreement, and in addition to the definitions set forth in the recitals, the following terms are defined as set forth below: Affiliate: With respect to a Party, any other person or entity controlling, controlled by or under common control with, such Party. Applicable Law: All federal, state and local statutes, regulations, regulatory guidelines, and judicial or administrative holdings or interpretations applicable, as the case may be, to each party s performance of its obligations under this Agreement (including, without limitation, applicable consumer credit laws, rules and regulations). Application: The action or document by which a consumer applies for a Customer Account. Business Day: Each day other than Saturday, Sunday or a day on which banking institutions in the States of New York or Minnesota are obligated by law to be closed. Customer: The individual in whose name an Application is submitted. Customer Account: The account established by an agreement between a Customer and either Fortiva or a Financial Institution designated by Fortiva for the financing of the Products sold by Merchant to a Customer or Customer s designee.

2 Declined Customer: A Customer who applied for financing from, and was declined financing by, the Initial Credit Offeror. Discount: The percentage that is used to determine the Funded Amount as set forth in Exhibit A. Financial Institution: Any banking or other financial institution or institutions that may or does issue the credit to the Customer and on whose behalf Fortiva markets and services a Customer Account. Effective Date: The date set forth on the signature page to this Agreement following the execution of this Agreement by both Parties. Funded Amount: As set forth in Section 3 (a), and further described in Exhibit A, each herein. Initial Credit Offeror: That single person, firm or entity, currently identified in the Merchant Information, that issues credit to consumers generally considered to be in the prime credit spectrum, and to whom a Customer first submits an application for financing for Products. Merchant Information: That information and data provided by Merchant to Fortiva or its Affiliates in connection with this Agreement. Merchant Location: Every physical retail location, in existence as of the Effective Date or that comes into existence during the Term of this Agreement that is owned or operated either by Merchant or any of its Affiliates. Policies and Procedures: All requirements for the use of advertising, application, approval, notice, disclosure, documentation and other materials relevant to the Program that are developed and updated from time to time by Fortiva and provided to Merchant. Products: Jewelry and such other goods purchased by a Customer from Merchant. Program: The program memorialized in this Agreement and as more fully described in any exhibits and schedules attached hereto and thereto and incorporated herein by reference, as applicable, whereby Fortiva has the right to consider the applications of Declined Customers for a Customer Account. Regulatory Authority: Any federal, state or other governmental agency having jurisdiction over the Program. Reversed Payment: As set forth in Section 3(b). 2

3 Website: The unique URLs in the Merchant Information, and any other consumer-facing website for the sale of Products that is owned or operated by Merchant or its affiliates. 2. OBLIGATIONS OF THE PARTIES REGARDING THE PROGRAM. (a) Customer Account Origination. (i) Merchant shall implement and use such procedures and systems as reasonably required by Fortiva for processing Applications and shall provide Customer with all documents, disclosures and other materials required by the Policies and Procedures at all Merchant Locations and on all Websites. Fortiva shall determine the form and content of all marketing and advertising materials for the Program and Merchant shall not market or advertise the Program or any of its terms or conditions or use any documents, disclosures or other materials, except in accordance with the Policies and Procedures, and at all times, in a manner approved by Fortiva. (ii) Merchant shall provide space in its facilities and technology to reasonably facilitate the offering of the Program. Merchant shall enable electronicallyexecuted Customer Account documentation to be provided to Fortiva in accordance with its instructions and otherwise provide such information and complete such actions necessary to establish Customer Accounts. Merchant shall assist all Declined Customers who express an interest in obtaining financing with completing and submitting an Application. Merchant shall not pass any portion of the Discount on to a Customer nor shall Merchant charge any additional fees to a Customer for participating in the Program. (iii) Fortiva, acting on its own behalf or on behalf of a Financial Institution, shall have complete discretion to approve or decline for approval an Application. Upon Fortiva s approving a Declined Customer s Application and establishing a Customer Account, Merchant shall sell, provide and otherwise furnish those Products for which the Customer Account has been established and provide services related to the Products, in compliance with its agreement with the Customer, this Agreement, and the Policies and Procedures. (b) Ongoing Account Requirements. (i) Fortiva shall service the Customer Accounts in compliance with Applicable Law and provide reasonable support, personnel and resources to fulfill its obligations for the Program. Such support activities shall include, without limitation, informing Merchant of the status of Applications and Customer Accounts, providing training materials and activities for Merchant and its employees, maintaining an internetbased portal for the Program (including for accepting Applications) and providing customer care services. (ii) Merchant shall provide the services and support, and honor all commitments, to the Customer that it would otherwise provide and honor for a customer 3

4 who purchases Products other than through the Program. The foregoing sentence shall include, without limitation, providing customary assistance with Products, providing for the exchange and return of Products, and providing for and assisting with adjustments and repairs. Merchant shall process all Customer complaints and disputes related to Products in accordance with Merchant s policies. Merchant authorizes Fortiva and its Affiliates to communicate and correspond with the Initial Credit Offeror for the purpose of administering the Program. (iii) Merchant shall process all Customer complaints and disputes in a reasonable fashion, and promptly provide to Fortiva relevant information in connection therewith. Merchant will promptly deliver to Fortiva, to the extent permitted by Applicable Law (A) any notice of actual or threatened actions issued by any Regulatory Authority involving the Program or any Customer Account; and (B) any written customer or other complaints received by Merchant relating to the Program. (iv) Each of Fortiva and Merchant shall reasonably cooperate with, and provide information to, the other Party in the performance of its duties and obligations pursuant to this Agreement, the Program and Customer Accounts. In no event shall Fortiva be obligated to provide access to or otherwise make available to Merchant or any third party data, documentation, information or other materials (a) that Fortiva reasonably deems to be confidential, proprietary or otherwise related to its analytical or underwriting methods or processes used to evaluate, for itself, any Affiliate or Financial Institution, Applications, or the actual or expected performance of Customer Accounts; or (b) at an account level if reasonably deemed by Fortiva to compromise the confidentiality of Fortiva s proprietary analytical or underwriting methods or processes as described herein. (c) Marketing Limitations. So long as this Agreement is in effect, and except for the existing program with the Initial Credit Offeror and any Affiliate of Fortiva, Merchant shall not offer, permit to be offered, or cause to be offered, directly or indirectly, by Merchant or any other person, firm or entity, to any consumer at a Merchant Location or from any Website, the option to finance, enter into loans for, or otherwise facilitate payment for the purchase or leasing of Products, other than pursuant to the Program. (d) Delegation. Fortiva shall be permitted, without further notice to or consent by Merchant, to assign or delegate any of its rights or obligations set forth in this Agreement to any Affiliate of Fortiva. Among other obligations that may be assigned as provided herein, an Affiliate of Fortiva may be the credit grantor of the Customer Account or may perform any of the marketing or servicing obligations of Fortiva herein. For any assignment as provided herein, in all instances in this Agreement where Fortiva is named, or rights or obligations are conferred upon Fortiva, Merchant acknowledges and agrees that this Agreement shall be construed, for such purposes, to include (where applicable), the applicable Affiliate. Merchant also consents to a Financial Institution (as designated by Fortiva or its Affiliates), issuing the credit for the Customer Accounts. In the case of a Financial Institution extending the credit, Fortiva shall remain obligated to Merchant for the obligations undertaken by Fortiva as set forth herein. 4

5 3. PAYMENTS. (a) Payment of Funded Amounts. Fortiva shall initiate payment to Merchant of the amount as described in Exhibit A (the Funded Amount ) for each approved and accepted Application before 11:00 p.m., Eastern time of the third Business Day following such acceptance. (b) Reversed Payments. Merchant shall pay to Fortiva a Reversed Payment (as defined below) when for any Customer Account: return policy; (i) (ii) any Products were not delivered to the Customer; any Products were returned by a Customer pursuant to Merchant s (iii) Fortiva determines, in good faith and after notice to Merchant and a reasonable investigation and review, that through no fault attributable to Fortiva, the Customer Account was not established pursuant to the Policies and Procedures (where such failure constitutes a material violation of Applicable Law) or was established through fraud attributable to Merchant; or (iv) Merchant credited a Customer Account that is not otherwise subject to subsections (i) through (iii), above. The amount of the payment shall be deemed the Reversed Payment for the purposes of this Agreement and shall be, for subsections (i) and (ii) above, equal to the Funded Amount attributable to those corresponding Products; for subsection (iii), above, equal to the Funded Amount attributable to the Customer Account; and for subsection (iv), above, equal to the amount credited multiplied by the Discount rate used to determine the Funded Amount. For circumstances or situations not provided for above, the Parties shall cooperate in good faith to credit, pay and adjust the Funded Amount in a fair and equitable manner to arrive at the amount of the Reversed Payment. The Reversed Payment shall be paid by Merchant to Fortiva within three (3) Business Days after notice has been provided by Fortiva to Merchant of the obligation for such Reversed Payment. (c) Offsets; ACH; Late Payments. So long as this Agreement is in effect, any amounts owed to Fortiva or its Affiliates hereunder may be offset against any amounts owed by Merchant or its Affiliates. Merchant shall permit, and does hereby grant the right to, Fortiva to withdraw through an ACH or similar process, funds from an account in Merchant s name for any undisputed amounts due Fortiva or its designee. Merchant shall provide Fortiva and Merchant s bank(s) the necessary information and authorizations for such rights. Merchant shall also take those measures with its bank to authorize Fortiva s withdrawal rights, including changing any initial or original settings on such account that may have been established to prevent or limit ACH withdrawals. 5

6 Merchant shall ensure that, in such account, there are sufficient funds to compensate for any and all credits, reversals, returns and other matters that Merchant is obligated to pay Fortiva as provided herein Any payment due one party by the other that is not paid as provided herein shall accrue interest in the amount of 1 ½ % per month until paid, or the maximum amount permitted by New York law, if a lesser amount. 4. REPRESENTATIONS, WARRANTIES AND COVENANTS. (a) Fortiva represents, warrants and covenants to Merchant that: (i) Corporate Existence. Fortiva is a limited liability company duly organized and validly existing under the laws of the State of Georgia and is duly qualified and authorized to do business and to own its properties and to perform its obligations under the Agreement. (ii) Corporate Power and Authorization. Fortiva has the power and authority to enter into and perform the Agreement and the execution, delivery and performance of the Agreement has been duly authorized by all necessary action on Fortiva s part and does not contravene its charter and/or by-laws or any indenture, mortgage, credit agreement, license or other agreement or instrument to which Fortiva is a party, or by which it or any of its property is bound, or any law, judgment or governmental rule, regulation or order applicable to it. (iii) Valid Legal Obligation. The Agreement constitutes Fortiva s legal, valid and binding obligation, enforceable against it in accordance with the respective terms hereof except as such enforcement may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally, or (ii) the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law). (iv) Noncontravention. There are no actions or proceedings pending or threatened against Fortiva before any court or administrative agency which are likely to have a material adverse effect on Fortiva s condition or the results of its operations or its ability to perform its obligations under the Agreement. (v) No Third Party Approval. No authorization, approval or license or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by Fortiva of the Agreement or for the consummation of the transactions contemplated hereby. (vi) Compliance with Applicable Law: Fortiva is in material compliance with, and will comply in all material respects with, all Applicable Law that relates to Fortiva, the Program and the matters and transactions contemplated herein. (b) Merchant represents, warrants and covenants to Fortiva that: 6

7 (i) Corporate Existence. If Merchant is an entity other than an individual, then Merchant is duly organized, formed or incorporated and validly existing under the laws of the state of its organization, formation or incorporation and is duly qualified and authorized to do business and to own its properties and to perform its obligations under the Agreement. (ii) Power and Authorization. Merchant has the power and authority to enter into and perform the Agreement and the execution, delivery and performance of the Agreement has been duly authorized by all necessary action on Merchant s part and does not contravene any charter and/or by-laws or any indenture, mortgage, credit agreement, license or other agreement or instrument to which Merchant is a party, or by which it or any of its property is bound, or any law, judgment or governmental rule, regulation or order applicable to it. (iii) Valid Legal Obligation. The Agreement constitutes Merchant s legal, valid and binding obligation, enforceable against it in accordance with the respective terms hereof except as such enforcement may be limited by (i) any applicable bankruptcy, insolvency, reorganization, moratorium or similar law affecting creditors rights generally, or (ii) the effect of general principles of equity (regardless of whether considered in a proceeding in equity or at law). (iv) Noncontravention. There are no actions or proceedings pending or threatened against Merchant before any court or administrative agency which are likely to have a material adverse effect on Merchant s condition or the results of its operations or its ability to perform its obligations under the Agreement. (v) Compliance with Applicable Law: Merchant is in material compliance, and will comply in all material respects, with all Applicable Law that relates to Merchant, the conduct of its business and its offering of Products and services. Merchant will comply in material respect with the Policies and Procedures. (vi) No Third Party Approval. No authorization, approval or license or other action by, and no notice to or filing with, any governmental authority or regulatory body or any other third party is required for the due execution, delivery and performance by Merchant of its obligations under the Agreement, or for the consummation of the transactions contemplated hereby. (vii) No Other Similar Program. As of the Effective Date, Merchant is not currently offering, permitting to be offered, or causing to be offered any loan product to any Declined Customers. (viii) Accuracy of Merchant Information. As of the Effective Date of this Agreement, and thereafter continuing during the term of this Agreement, the Merchant Information provided is true and correct in all respects and Fortiva is authorized to rely on it for all purposes. Merchant shall update, correct and supplement the Merchant Information on a timely basis, and in a manner or method prescribed by Fortiva. 7

8 5. TERM AND TERMINATION (a) Term. Subject to the provisions of this Section 5, the term of this Agreement shall commence on the Effective Date and shall expire on midnight of the day immediately before the three year anniversary of the Effective Date. If neither party has given written notice as provided herein, then the term shall be automatically extended for one year renewal terms. (b) Material Breach and Cure Period. In the event of any material breach of any representation, warranty, covenant or obligation pursuant to this Agreement by Merchant or Fortiva, the non-breaching party may terminate this Agreement by giving notice ( Breach Notice ) to the breaching party. The Breach Notice shall (i) describe the material breach; and (ii) state the non-breaching party s intention to terminate this Agreement. If the breaching party does not cure such breach to the sole and complete satisfaction of the non-breaching party within thirty (30) calendar days after receipt of the Breach Notice as described in this subsection (the Cure Period ), then the non-breaching party may immediately terminate this Agreement by giving notice following the end of such Cure Period ( Termination Notice ). The Termination Notice shall (i) state the terminating party s intention to terminate this Agreement pursuant to this subsection, and shall (ii) be provided to the breaching party within fifteen (15) calendar days following the end of the Cure Period. For purposes of this Agreement, but without limiting the foregoing provisions herein, a material breach of this Agreement shall include, among other things: (i) the other Party to this Agreement ceasing doing business; (ii) the other Party making an assignment for the benefit of creditors, a receiver is appointed for the Party, a petition in bankruptcy is filed by or against the Party or it is unable to pay its debts and they generally become due in the ordinary course of business; or (iii) the other Party is in material breach of any representation, warranty, covenant or obligation hereunder. 6. POST-TERMINATION OBLIGATIONS (a) Sections 2(c), 3(b) & (c), 6, 7, 8, 9 and 10 shall survive termination of this Agreement. If, after the effective date of termination or expiration of this Agreement, Merchant takes any action with respect to a Customer that should result in the posting to any Customer Account of a credit as provided for in this Agreement, then Fortiva and Merchant shall pay or settle with each other, as the case may be, in accordance with Section 3(c). Merchant s obligation to Customers related to Products and Product-related services sold as part of the Program shall also survive the termination or expiration of this Agreement. (b) The parties shall execute those documents, and take those actions, reasonably required in order to fulfill the obligations contemplated by the obligations set forth in the preceding subsections. 8

9 (c) For two years following termination of this Agreement, Merchant shall not (i) offer, permit to be offered, or cause to be offered, directly or indirectly, by Merchant or any other person, firm or entity, to any Customer who is then a party to a Customer Account, the option to finance, enter into loans for, or otherwise facilitate payment for the purchase or leasing of Products, other than pursuant to the Program; or (ii) select, identify or specifically target any Customer who is then a party to a Customer Account, for the purpose of promoting, marketing or selling any Products to that Customer (it being understood that the restrictions set forth in this sentence include, without limitation, targeted text messages, in-person communications, phone calls and direct mail to that Customer). Fortiva shall provide to Merchant information and data at a reasonable frequency, and Merchant shall as soon as practicable without delay use, disseminate and integrate such information and data to comply with the restrictions set forth in this subsection. 7. INDEMNIFICATION. (a) Fortiva s Indemnification. Fortiva will indemnify and hold harmless Merchant, its directors, officers, agents, employees, affiliates, successors and assigns from and against any and all liability, causes of action, claims, and the reasonable and actual costs incurred in connection therewith, resulting from (i) any claim that any of Fortiva s proprietary inventions, procedures, products, patents, patent applications, trademarks, copyrights or other intellectual property used by Fortiva in conjunction with the Program infringes a patent, industrial design, copyright, or trademark of a third party, (ii) claims by a Regulatory Authority that Fortiva has violated Applicable Law in its performance of its obligations under this Agreement, or (iii) a breach by Fortiva of, or Fortiva s failure to perform, its obligations under this Agreement; provided, however, that Fortiva s obligations as set forth in this subsection (a) shall not apply if the acts or omissions of Merchant are the primary cause of the claim giving rise to Merchant s indemnity rights set forth herein. In the event any claim related to any of the foregoing is made or any suit or action is commenced, Merchant will give notice to Fortiva as promptly as practicable. (b) Merchant s Indemnification. Merchant will indemnify and hold harmless Fortiva, its directors, officers, agents, employees, affiliates, successors and assigns from and against any and all liability, causes of action, claims, and the reasonable and actual costs incurred in connection therewith, resulting from (i) any claim that any of Merchant s conduct or actions resulted in any personal injury or property damage, (ii) claims, investigations or other actions by a Regulatory Authority that Merchant has violated Applicable Law in the conduct of its business or its offering of Products or services or (iii) a breach by Merchant of, or Merchant s failure to perform, its obligations under this Agreement; provided, however, that Merchant s obligations as set forth in this subsection (b) shall not apply if the acts or omissions of Fortiva are the primary cause of the claim giving rise to Fortiva s indemnity rights set forth herein. In the event any claim related to any of the foregoing is made or any suit or action is commenced, Fortiva will give notice to Merchant as promptly as practicable. 9

10 8. CONFIDENTIALITY. Each Party shall keep confidential the terms of this Agreement and all information and documents received from any party to this Agreement in connection with this Agreement, and shall not disclose the same to any third party without the prior consent of the party or parties that might be affected thereby. For purposes of this Agreement, the term Confidential Information means any confidential or proprietary information whether provided in writing or orally to Fortiva by or on behalf of Merchant or to Merchant by or on behalf of Fortiva, including but not limited to proprietary information regarding computer applications, methods, processes, inventions, improvements, intellectual property and trade secrets as well as information about Fortiva s, Merchant s or either of their affiliates businesses, services, products, processes, formulas, designs, formats, marketing plans and materials, analyses, pricing, discounts, strategies, business plans, forecasts, research, underwriting criteria, customer names, addresses, and any other characteristics, identifying information of customers, or aspects of Fortiva s, Merchant s or their affiliates existing or potential customers, or any information derived therefrom. Further, each party acknowledges that it shall remain the sole owner of its own Confidential Information, intellectual property and other proprietary data and that neither party shall acquire any right, title or interest to the other party s Confidential Information, except as especially set forth herein. The limitations set forth in this subsection shall not apply to: (a) information that is or becomes generally available to the public other than as a result of a disclosure by any person in breach of this Agreement; (b) information already in a party s possession without restriction on disclosure; (c) information that comes into a party s possession from a third party without restriction on disclosure, other than through a breach of an agreement with the original disclosing party of which the recipient party is aware; and (d) information the disclosure of which is compelled by force of law; provided, however, the receiving party shall promptly notify the disclosing party of such requirement or disclosure so that the disclosing party may seek an appropriate protective order or otherwise seek to protect the confidentiality of any such information that is sought to be disclosed pursuant to this subsection. Notwithstanding any contrary provision in this Agreement, Merchant consents to Fortiva sharing with third parties data regarding the Applications, acceptances and the performance of Customer Accounts. Notwithstanding any other provision in this Agreement, each party to this Agreement understands that if it fails to comply with this subsection, the other party will suffer irreparable harm which may not be adequately compensated for by monetary damages alone. Each party, therefore, agrees that in the event of its breach or threatened breach of this subsection, the other party shall be entitled to injunctive and/or other preliminary or equitable relief, in addition to any other remedies as provided for in this Agreement. 9. LIMITATION OF LIABILITY Neither Party shall be responsible or held liable to the other for consequential, incidental or special damages. 10

11 10. MISCELLANEOUS (a) Notices. All notices consents, calls, approvals, reports, designations, requests, waivers, elections and other communications (collectively Notices ) authorized or required to be given pursuant to this Agreement shall be given in writing, and (i) personally delivered to the person to whom it is given, (ii) mailed by registered or certified mail, postage prepaid, (iii) sent by telecopy, receipt confirmed, or (iv) sent by courier guaranteeing overnight delivery, in each case addressed as follows: If to Merchant: To the address set forth on the signature page of the Agreement. If to Fortiva: Five Concourse Parkway, Suite 400 Atlanta, Georgia Attn: Director of Fortiva Operations With a duplicate (which shall not constitute notice) to: Five Concourse Parkway, Suite 400 Atlanta, Georgia Attn: Legal Department All notices shall be deemed given when delivered (or received, receipt confirmed, in the case of telecopy notices). Either party to this Agreement may change its address and/or telecopy number for the receipt of Notices at any time by giving Notice thereof to the other party. (b) Entire Agreement. This Agreement, together with any exhibits and schedules hereto, constitutes the complete and exclusive statement of the Agreement between Merchant and Fortiva with respect to the subject matter contained herein and therein and supersedes all prior agreements, oral or written, and understandings among Merchant and Fortiva with respect to the subject matter hereof and thereof. There are no representations, warranties, understandings or agreements, oral or written, Merchant and Fortiva relating to the subject hereof or thereof except as specifically set forth herein. (c) Amendment. This Agreement may only be amended by written instrument signed by both parties hereto. (d) Waivers. Waiver by any party of a breach of any provision of this Agreement shall not be deemed a waiver of any subsequent breach of this Agreement, or any breach of any other provision of this Agreement. 11

12 (e) Severability. If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validly, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby. (f) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Georgia and without reference to any conflict of law or choice of law principles of the State of Georgia that might apply the law of another jurisdiction. (g) Counterparts. This Agreement may be executed in any number of counterparts or with counterpart signature pages, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. (h) No Agency, Partnership or Venture. Nothing in this Agreement shall be deemed to create an agency relationship, partnership or joint venture between the Parties hereto. The Parties at all time shall solely be deemed independent contractors of one another. (i) Assignment. This Agreement and all rights and obligations hereunder are personal as to the parties hereto and, except as otherwise permitted herein, none of the parties hereto shall assign or attempt to assign any such rights or obligations. IN WITNESS WHEREOF, this Agreement was executed and delivered on behalf of the parties hereto by their respective duly authorized representatives as of (the Effective Date). (Date) Exhibit A Funded Amount Merchant to Select either Option A or Option B or Option C: Option A Option B Option C Tier Discount Tier Discount Tier Discount 1 12% 2 17% 3 22% 1 12% 2 17% 1 12% Merchant selects Option (Merchant to insert A, B or C) Funded Amount: The Funded Amount shall be equal to (a) the amount of the initial loan issued to the Customer (b) minus the product of (i) the amount of such loan multiplied by (ii) the applicable Discount, set forth above. For illustration only, if a Customer whose Application corresponds with Tier 2 criteria, Merchant has elected either Option A or 12

13 Option B, the Application is approved for a Customer Account, and the initial loan issued is $2,000, the Funded Amount would be $1,660. Merchant Name: Signature: Individual Signing: Individual s Title: Merchant Address: Fortiva Financial, LLC By: Name: Title: Merchant Information ( ).xlsx 13