Pay at Close Program Terms and Conditions
Last Updated: November 12, 2021
Guardian Small Business Consulting and Financial Services, LLC (“Guardian Financial”) offers Inspectors the ability to participate in a financing program under which Guardian Financial will purchase at a discount an Inspector’s right to receive payment from a customer under an agreement in which the Inspector has permitted the customer to defer payment of the cost of the Inspector’s services until closing (“Pay at Close” or the “Pay at Close Program”). These terms and conditions (“Terms”) govern an Inspector’s participation in the Pay at Close Program.
As used in these Terms, “we”, “us”, or “our” refers to Guardian Financial. Unless otherwise indicated, “you” and “your” refers to the individual or entity that is accepting these Terms and participating in the Pay at Close Program. By accepting these Terms or otherwise participating in the Pay at Close Program, you acknowledge and agree to comply with these Terms, including your consent to electronics communications, as provided in the E-SIGN Disclosure.
We may update these Terms from time to time by posting an updated version. Any modifications to these Terms will be effective thirty (30) days from the date they are posted. Your continued participation in the Pay at Close Program, including submission of Invoices for purchase, shall constitute your acceptance of such modified Terms.
“Customer” means an individual, natural person to whom you provide Inspection Services in connection with a purchase of residential real property.
“Designated Account” means the deposit account you identify to us for the receipt of Invoice purchase funds and the payment of any amounts you owe to use under these Terms.
“Discount Rate” means a percentage of the Service Cost that will be communicated to you upon your receiving approval to participate in the Pay at Close Program.
“Guardian Financial Parties” means Guardian Financial and its affiliated companies, and their respective officers, directors, employees, contractors, shareholders, agents, representatives, licensors, licensees and suppliers.
“Inspection Services” means the residential real property home inspection services you provide to a Customer.
“ISN” means our affiliate, Inspection Support Network, LLC.
“Invoice” means each invoice generated through ISN and executed by a Customer in which you permit the Customer to defer payment for Inspection Services until closing. “Purchase Price” means, with regard to each Invoice submitted to us for purchase, the Service Cost less the Discount Rate.
“Service Cost” means the cost of Inspection Services payable by a Customer as evidenced in an Invoice.
- General. You agree to comply with all laws applicable to your participation in the Pay at Close Program, including but not limited to any federal or state prohibition on deceptive, abusive, or unfair acts and practices applicable to your marketing, offer, and sale of Inspection Services through an Invoice. If you conduct the sale of Inspection Services at any location other than your place of business, you will comply with all laws applicable to home solicitation sales.
- Fees. The price of your services under an Invoice must be the same as the price for equivalent services assessed to all other customers. You acknowledge and agree that in connection with offering Inspection Services to a Customer through an Invoice you shall not impose any fee, interest, finance charge, or other cost on a Customer paying through an Invoice that is not imposed on all other customers.
- Eligibility. To be eligible to participate in the Pay at Close Program, you must be a member of ISN. If you are not a member or your account with ISN is terminated for any reason, you will not be able to participate in the Pay at Close Program.
- INVOICE PURCHASE
- General. We agree to purchase and take assignment of each Invoice that meets the requirements under Section 4.2 within five (5) days of the customer executing the Invoice through ISN by depositing the Purchase Price in your Designated Account. Only Invoices you generate through ISN are eligible for purchase. On the date we pay you the Purchase Price for an Invoice, you hereby sell, assign, and transfer all right, title, and interest in, to, and under such Invoice to us and we shall become, for all purposes, the owner of such Invoice. You will provide any further information or documentation that may be needed to finalize such purchase and sale promptly upon our request. Notwithstanding the forgoing, we reserve the right to decline to purchase any submitted Invoice in our sole discretion, including if we determine the Invoice does not meet the requirements of Section 4.2. We may choose to aggregate payments for the purchase of multiple submitted Invoices in our sole discretion.
- Invoice Requirements. As of the date of our purchase of any Invoice, you represent, warrant, and covenant that:
- You are in compliance with these Terms;
- You have complied with all applicable federal and state laws in the marketing, offer, and execution of such Invoice;
- Such Invoice accurately reflects the terms and conditions of your sale of Inspection Services to the Customer and all information contained in the Invoice is true and accurate to the best of your knowledge;
- The Invoice represents a valid, binding, and enforceable agreement with the Customer;
- You are the sole legal, beneficial, and equitable owner of such Invoice and have good and marketable title thereto and have not sold, assigned, or otherwise transferred any right or interest in or to such Invoice to any third party or pledged such Invoice as collateral for any debt or other purpose.
- Purchase Cap. We may establish limits on the amount of Invoices we purchase from you in a given period, including by capping the aggregate Purchase Price of Invoices we purchase or the total dollar amount of any single Invoice.
- Re-Purchase. If we determine that any of the representations, warrants, or covenants in Section 4.2 was inaccurate or untrue as of the date of our purchase of the Invoice, you agree you shall repurchase such Invoice by paying us the Purchase Price. We shall be entitled to debit any amounts you owe for repurchased Invoices from your Designated Account upon providing notice to you.
- Non-Recourse. You shall not be liable to us in the event a purchased Invoice is not paid by the Customer when due.
- PAYMENT AUTHORIZATION
- ACH Authorization. You authorize us to initiate automated clearinghouse (“ACH”) debit or credit entries to your Designated Account to (a) deposit the Purchase Price for each Invoice we purchase from you; and (b) to debit any amounts you owe use under these Terms. You shall provide no less than fourteen (14) days’ notice prior to a change in any information related to your Designated Account. You may revoke this authorization by writing to firstname.lastname@example.org with no less than fourteen (14) days’ notice. You acknowledge and agree an effective authorization under this Section 5.1 is a requirement of the Pay at Close Program and we will terminate your participation immediately should you choose to revoke your authorization.
- Set Off. You acknowledge and agree that Guardian Financial has the right to set off amounts Guardian Financial owes to you for the Purchase Price of submitted Invoices against any amounts you owe to Guardian Financial under these Terms.
- Return of Funds. In the event that a Customer, or a party on behalf of Customer, pays the Service Cost to you pursuant to an Invoice which we have purchased from you, you agree you owe us those funds and you agree to forward that payment to us immediately upon receipt. If we choose, we may set off those funds in accordance with Section 5.2.
We may terminate your ability to participate in the Pay at Close Program at any time, with or without cause, and effective immediately.
- Warranty; Disclaimer
The Pay at Close Program is provided on an “as is” basis. To the fullest extent permitted by law, the Guardian Financial Parties make no warranty of any kind, express, implied, statutory or otherwise, with regard to the Pay at Close Program, including but not limited to, warranties of merchantability, fitness for a particular purpose, noninfringement, or any warranty that the Pay at Close Program and any materials provided by Guardian Financial, are free from defects.
- Limitation of Liability; Indemnification
- Limitation of Liability. To the fullest extent permitted by law, the Guardian Financial Parties, shall not be liable under these Terms for any (a) indirect, special, incidental, consequential, exemplary, or punitive damages; or (b) cost of cover or lost business, revenues, or profits (in each case whether direct or indirect), even if the Guardian Financial Parties knew or should have known that such damages were possible. To the fullest extent permitted by law, the Guardian Financial Parties’ aggregate liability for any and all claims arising out of or in connection with these Terms will not exceed $100.00.
- Indemnification. You agree to indemnify, defend, and hold harmless the Guardian Financial Parties from and against any claims, losses, actions, proceedings, regulatory investigations, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) arising from your participation in the Pay at Close Program, including but not limited to (a) your violation of applicable laws; (b) your breach of these Terms; (c) any claim or dispute brought by a Customer; or (d) your negligence, intentional misconduct, or fraud.
- Dispute Resolution
- Binding Arbitration. You agree that any dispute or claim arising out of or relating in any way to these Terms, or your participation in the Pay at Close Program, including the validity, applicability or interpretation of these Terms (any of these, a “Dispute”) will be resolved only by binding arbitration rather than in court. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitration will be conducted by the American Arbitration Association (AAA) under its then-applicable rules, available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Inspector agrees that the hearing will be conducted in Meridian, Idaho. Without limiting the jurisdiction of any other court, you admit and further irrevocably agree to submit to the personal jurisdiction of the courts located within Ada County, Idaho for the purpose of entering judgments on arbitral awards.
- Class Action Waiver. Any Dispute will be conducted only on an individual basis and not in a class, consolidated or representative action or arbitration or as a named or unnamed member in a class, consolidated, representative or private attorney general legal action. Your continued participation in the Pay at Close Program constitutes your explicit consent to this waiver.
- Governing Law. You agree that these Terms and any Dispute will be governed solely by United States federal law and Idaho state law, without regard to any conflict of law provisions.
- Venue. If for any reason a claim proceeds in court rather than in arbitration, both parties waive any right to a jury trial and agree that venue for such claim will lie exclusively in the state or federal courts located in the city of Meridian, Idaho and each party irrevocably waives any right to raise any argument that such courts are not the proper venue and irrevocably consents to personal jurisdiction of such courts.
- Expenses. If we take any legal action against you as a result of your violation of these Terms, or in the event of any Dispute, we will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to us.
- GENERAL TERMS
If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain fully enforceable. No waiver of any provision shall be treated as any further or continuing waiver of such provision or any other provision, and our inaction or lack of assertion of any right or provision does not constitute a waiver of such right or provision. Your rights under these Terms are not assignable or transferable except with our prior written consent. We may freely assign our rights under these Terms. The parties are independent contractors and no agency, partnership, joint venture, or employment is created as a result of these Terms. These Terms constitute the entre agreement between us and you concerning the Pay at Close Program. All provisions of these Terms that by their nature reasonably should survive termination shall so survive.