VSC / GAP ADMINISTRATOR & PROVIDER AGREEMENT

Transcription

1 For office use only: VSC company number: GAP company number: VSC / GAP ADMINISTRATOR & PROVIDER AGREEMENT Company Federal Tax ID # Effective Date Address City State ZIP Telephone Number Fax Number Contact Name Contact s Account Type (select one) Franchise Dealer Non-Franchise Dealer Bank or Credit Union Marketer Other Products: Vehicle Service Contract (VSC) Guaranteed Auto Protection (GAP) THIS AGREEMENT is, by and between Mechanical Breakdown Protection, Inc., a Missouri corporation, Vehicle Protection, Inc. ("VPI"), a Missouri corporation, and MBP Network, Inc. ("MBP Net"), a Florida corporation with their principal offices located at 250 NE Mulberry, Lee's Summit, Missouri (individually and collectively with their affiliated entities, MBPI ), and the entity identified above ( Company ). WHEREAS, MBPI provides VPI/MBP Net as the exclusive Obligors for the Mechanical Breakdown Protection, Inc. vehicle service contract (VSC) and enables the Company to offer its borrowers a GAP Waiver agreement and provides Mechanical Breakdown Protection, Inc. as the exclusive program administrator on behalf of VPI/MBP Net for MBPI customer care Programs. The Programs consist of those products identified above (the "Products"). WHEREAS, Company desires to offer one or more of the Products to its motor vehicle customers ( Customers ) and MBPI desires to appoint the Company as a sales representative for such Products, all in accordance with the terms and conditions of this Agreement. 1. Company s Authority. MBPI hereby authorizes Company to offer and sell MBPI Products to Company s customers. All Products shall be sold only on forms prescribed by MBPI ( Product Forms ) and in accordance with and subject to the applicable Program rules, coverages, guidelines, and costs then in effect (collectively, the Program Terms ). Company shall not have any authority to alter, modify, waive, or discharge any Program Terms without MBPI s prior written consent. MBPI may revise the Program Terms at any time upon thirty (30) days prior written notice to Company, and Company shall conform to such revisions. MBPI, its partners and affiliates, shall not have any liability for, and Company shall indemnify, defend, and hold harmless MBPI, its partners and affiliates, with respect to, any Products sold in violation of the Program Terms or this Agreement. 2. Reports and Remittances. Within five (5) days after the end of each calendar month, Company shall furnish a report to MBPI of all Products sold during such month. The form and content of the report shall be prescribed by MBPI. The report shall be accompanied by Company s payment of the net Company cost due MBPI for all Products sold during the month, as set forth in the Information Page (the Company Cost ), and such other information and sales documentation required by MBPI. 3. Compensation and Refunds. As its sole compensation from the sale of the Products (except for any Product that constitutes an insurance policy and is sold pursuant to a written agency agreement with an authorized insurance company), Company shall be permitted to retain the difference between the retail price collected by Company from the sale of the Products and the Company Cost for such Products ( Company Compensation ). Company shall be obligated to refund a pro rata share of the Company Compensation with respect to any Product that is canceled or surrendered prior to its scheduled expiration date, which refund shall be calculated at the same rate specified in the Product Form for calculating the Customer s refund. Company shall not be MBPIDlrArg0312 Page 1 of 6

2 entitled to any portion of any cancellation fee set forth in the Product Form. Company s obligation to make refunds shall survive termination of this Agreement. 4. Product Benefits. MBPI shall be solely responsible for administering and paying all benefits under the Products. Company shall have no authority to adjudicate, settle, compromise, or pay any benefits under the Products. In the event a Customer attempts to make a claim under a Product directly with Company, Company shall instruct the Customer to follow the claims reporting instructions set forth in the Product Form and shall provide all reasonable and necessary cooperation and assistance to the Customer. Furthermore, Company acknowledges that certain VSC claim payments for outside parts and sublet repairs may be based on cost plus a predetermined percent markup with a cap. The Company should contact MBPI to receive the predetermined percent markup information and cap before incurring any outside parts or sublet repair obligations. 5. Company Covenants. The Company hereby makes the following general representations and covenants to MBPI: LICENSES a. Company and all persons employed by Company to perform any activities authorized by this Agreement with respect to the Program shall procure and maintain in good standing all licenses, permits, and certifications required under all applicable state and federal laws with respect to such activities. LAWS AND REGULATIONS b. Company shall familiarize itself and comply with all state and federal laws and regulations applicable to its activities pertaining to the Program. PRIVACY c. Company shall not use for any purpose other than as required by this Agreement or disclose to any other person or entity the names, personal information, and other information concerning the subject matter of the Products without first affording MBPI with a reasonable opportunity to confirm that such use or disclosure complies with any applicable federal or state privacy laws. RULES OF MBPI d. Company shall adhere to all rules, manuals, procedures, and instructions prescribed by MBPI concerning the Program and furnished to Company in writing. UNFAIR TRADE PRACTICES PROPERTY AND SUPPLIES e. Company shall not engage in unlawful discrimination, misrepresentation, or any unfair trade practice pertaining to the Program that is prohibited by law. f. Company shall maintain in a secure and safe place, and upon request shall account to MBPI for, all supplies and materials furnished by MBPI to Company with respect to the Program and shall return them to MBPI if this Agreement is terminated. EXPENSES g. Except as otherwise expressly provided in this Agreement, Company shall bear all of its business expenses and marketing costs in the performance of its duties and obligations under this Program and shall not incur any expense on behalf of MBPI without MBPI's prior written approval NEGOTIABLE INSTRUMENTS h. Company shall not negotiate or endorse any check or other negotiable instrument made payable to MBPI. LEGAL NOTICES i. Company shall promptly notify MBPI of its receipt of legal notices or legal complaints affecting MBPI or the Program and shall immediately forward same to MBPI. ADVERTISING j. Company shall not publish, circulate, or display any advertisements, circulars, brochures, or other materials that name or refer to MBPI, its partners or affiliates,, their respective products, or their respective businesses unless the content thereof has received the prior written approval of MBPI, its partners or affiliates, as appropriate. INDUCEMENT TO k. While this Agreement is in force or at any time thereafter, Company shall not induce the lapse, MBPIDlrArg0312 Page 2 of 6

3 LAPSE EMPLOYEE AND SUB-AGENT COMPENSATION AUDIT MODIFICATION OR WAIVER OF TERMS FIDUCIARY FUNDS cancellation, or termination of any Product sold in the Program. l. Company shall be responsible for the payment of compensation and commissions to all permitted sub-agents and employees utilized or employed by Company in the performance of its duties and obligations under this Agreement or the Program and shall hold harmless MBPI, its partners or affiliates, for same. m. Subject to reasonable prior notice, Company shall grant MBPI and its authorized representatives, accountants, attorneys, and investigators right of free access during normal business hours at Company's place of business for the purpose of inspecting and auditing the books and records maintained by Company with respect to the Program. MBPI, at its expense, may make copies and retain any of such books and records which pertain to the Program. n. Company shall not have any authority to modify, waive, alter, or change, orally or in writing, any of the terms and conditions of a Product, whether prior to or after the sale of the Product. o. Company shall be considered a fiduciary of all monies received by Company on behalf of MBPI or otherwise due MBPI and shall not convert same to its own use until remittance to MBPI or otherwise applied by Company in accordance with this Agreement. COOPERATION GAP OBLIGATIONS (only if GAP product is selected on page 1) GAP PROCEDURES IN THE EVENT OF A LOSS (only if GAP product is selected on page 1) p. q. r. Company shall cooperate with MBPI in all matters relating to the Program. Company certifies that it is licensed by state regulatory authorities to make auto installment sales and is authorized to offer loan agreement GAP Waivers to its borrowers and to alter the prepayment provisions, as provided in certain GAP Waivers of liability to its borrowers, subject to any and all applicable laws. Company shall offer said GAP Waivers only to customers who originate their loans through the Company, only at the time the loan is transacted and only on the MBPI approved forms. Company is responsible for obtaining the necessary funding approvals from any regulatory authorities for lending institutions to which Company intends to assign the loan agreement for which a GAP Waiver has been issued. i. Company shall report to MBPI all requests for reimbursement and all necessary information within 30 days after the Company first has notice of the loss. ii. MBPI shall, upon receipt of all required documents, process the claim under the Company s insurance coverage. MBPI and/or the insurer shall not be responsible for any claim for loss not covered under the GAP Waiver not reported to MBPI as provided herein, for any GAP Waiver for which MBPI has not received payment as provided herein, or for GAP Waivers that do not comply with any procedure, rule, or regulation relating to the Program. iii. In the event that the Company assigns any loan for which there is a GAP Waiver issued, the Company shall cause the assignee to assume the Company s responsibilities under the GAP Waiver and any such insurance proceeds under the Program for such GAP Waiver shall be paid directly to the assignee. iv. If the Company offers the Additional Benefit Option, the Company agrees to provide a signed bill of sale indicating the Additional Benefit credit given to the borrower, and MBPI will reimburse the Company for the credit given to the borrower as provided for in the borrower s GAP Waiver. DIRECT AND INTERNET SALES s. Unless Marketer is selected on page 1 as Account Type, Company shall not market or sell Products except in connection with, and at the time of, the sale or lease of a motor vehicle by Company or Company shall not, without the prior written authorization by MBPI, market or promote the sale of Products through direct mail, telemarketing, internet, or other marketing channel. 6. Indemnification. Company shall indemnify, defend, and hold harmless MBPI, its partners, agents and employees, and their respective successors and assigns from and against all claims, losses, damages, liabilities, judgments, penalties, fines and MBPIDlrArg0312 Page 3 of 6

4 expenses, including but not limited to reasonable attorneys fees and costs, resulting from or arising out of (a) any wrongful or negligent act, error, or omission committed by Company or its employees in connection with the sale of the Products or the activities authorized by this Agreement, (b) any Product sold in violation of this Agreement or the Program Terms, including but without limitation any claim for benefits arising under such Product, or (c) the material breach by Company of any of the terms of this Agreement. 7. Effective Date and Termination. This Agreement shall become effective as of the date specified in the Information Page. This Agreement may be terminated by either party by giving thirty (30) days advance written notice to the other party, provided that this Agreement may be terminated immediately for any of the following reasons: (a) the failure of the other party to cure any material breach of this Agreement committed by such party within thirty (30) days after written notice of the breach has been provided by the terminating party; (b) the filing of a voluntary or involuntary bankruptcy petition involving the other party, or the appointment of a receiver, conservator, supervisors, or similar official concerning the other party; or (c) the assignment by the other party of all or substantially all of its assets for the benefit of its creditors. The termination of this Agreement shall not affect or diminish the obligations of the parties under this Agreement with respect to Products sold prior to the termination date. 8. Miscellaneous. The following provisions shall apply to the parties obligations under this Agreement: GOVERNING LAW AND ARBITRATION ENTIRE AGREEMENT INDEPENDENT CONTRACTOR a. This Agreement shall be interpreted and enforced in accordance with the laws of Missouri, without reference to the conflicts of laws principles thereof. Any controversy or claim arising out of or relating to this Agreement or the breach thereof shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. Such arbitration shall be conducted before a three-person arbitration panel, and each arbitrator shall have experience in matters of property and casualty insurance or reinsurance. One arbitrator shall be chosen by Company, one by MBPI, and a third arbitrator, an umpire, shall be chosen by the appointed arbitrators. In the event that the arbitrators are not able to agree on the choice of the umpire, the appointment shall be left to the President of the American Arbitration Association, or its successor. Venue for such arbitration shall be decided by the parties. If the parties cannot agree to where the arbitration will be conducted, then the arbitration panel will decide. The arbitration panel s award shall be in writing and shall set forth the findings and conclusions upon which it based the award. The prevailing party in any such arbitration shall be entitled to recover its reasonable attorney s fees, costs and expenses incurred in connection with the arbitration, as such is determined by the arbitration panel. b. This written Agreement and the exhibits hereto constitute the entire agreement and understandings of the parties relating to the subject matter of this Agreement and supersede all prior written or oral agreements or understandings of the parties. c. Company shall at all times be considered an independent contractor, and nothing in this Agreement is intended or shall be construed to create an employment, joint venture, or partnership relationship between MBPI and Company or between MBPI and any of Company s employees, agents, and sub-contractors. WAIVER d. The failure by either party to exercise or enforce any of its rights or remedies under this Agreement shall not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right, or remedy. SUCCESSORS AND ASSIGNS e. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective lawful successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective lawful successors and assigns any rights, remedies, obligations, or liabilities under or by reason of this Agreement. ASSIGNMENT f. Neither this Agreement, nor any of the authority, rights, duties, obligations, liabilities afforded or created by this Agreement may be assigned or delegated by Company to any other person without the prior written consent of MBPI. MODIFICATIONS g. This Agreement and the Information Page may not be amended or modified except by written agreement signed by both of the parties hereto. This provision does not apply to the Program Terms which may be amended by MBPI, as provided in paragraph 1. MBPIDlrArg0312 Page 4 of 6

5 SEVERABILITY h. If one or more provisions of this Agreement are held to be unenforceable under applicable laws, such provision shall be excluded from this Agreement and the balance of this Agreement shall be interpreted as if such provision were so excluded and shall be enforceable in accordance with its terms. NOTICES i. All notices, demands, or communications required under this Agreement shall be in writing, delivered personally, by mail, by facsimile, or by electronic mail at the respective addresses of the parties. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives. COMPANY MECHANICAL BREAKDOWN PROTECTION, INC. / VEHICLE PROTECTION, INC. / MBP NETWORK, INC. SIGNATURE PRINT NAME AND TITLE DATE SIGNATURE Kevin S. Orr, President PRINT NAME AND TITLE DATE MBPIDlrArg0312 Page 5 of 6

6 INFORMATION PAGE Company Owner General Manager Business Manager Comptroller Office Manager Service Manager Labor rate: Approved / Posted Retail Dealership Internal Rate Dealership Car Rental Rate Labor manual used: Sales Tax Rate: Parts only Rater retail amount $ $ $ % Parts & Labor $ Vehicle Service Contracts (VSC) Program Options (signed addendums must be attached) Preferred Program No Chargeback Disappearing Deductible Extra Program No Chargeback Disappearing Deductible Limit of Liability Wear and Tear Office use only: Rater Login Rater Password Agent use only: Rate Code for Rate Cards Guaranteed Asset Protection (GAP) Program Options 120% Program (available for all account types) 150% Program (available for franchise dealers, banks and credit unions) 150% Plus Program (available for franchise dealers, banks and credit unions in certain states only) Fully Earned 150% Program (available for franchise dealers, banks and credit unions) Fully Earned 120% Program (available for all account types) Commercial Program (available for franchise dealers, banks and credit unions) Ford Motor Credit Program (available for franchise dealers, banks and credit unions where Ford Motor Credit is the lien holder) Ford Flex Buy Program (available for franchise dealers, banks and credit unions only on Flex Buy contracts issued by Ford Motor Credit) GAP Program Cost 6-60 Months Months Months $ $ $ List lenders currently being utilized: Special Instructions This form must be signed by a Corporate Officer Company Name Officer Signature Officer Name and Title Date Mechanical Breakdown Protection, Inc. (MBPI) Kevin S. Orr -President Signature Individual Agent Signature Individual Agent Name Agency Name MBPIDlrArg0312 Page 6 of 6