1. Definitions

• “Account” is a unique identification number assigned to a Borrower’s Loan within the Program. It represents the Borrower’s Loan account.
• “Affiliate” means a Person that directly or indirectly controls, is controlled by, or is under common control with the Contractor. In this definition, “control” means having the power to direct or influence the management and policies of a Person through ownership, contracts, or other means.
• “Applicable Law” means in respect of any party to these Terms, all federal, state and local laws, statutes, ordinances, regulations, rules and orders, together with all rules and guidelines established by self-regulatory organizations, including the National Automated Clearing House Association, or government entities, applicable to such party or relating to or affecting any aspect of the Program (including the Loans), consumer credit laws, rules and regulations, and all requirements of any Governmental Authority having jurisdiction over a Party hereto or any activity provided for in these Terms or any other Program document, including all rules and any regulations or policy statements or guidance and any similar pronouncement of a Governmental Authority, or judicial or regulatory interpretation of the foregoing, applicable to the acts the parties to these Terms.
• “Applicant” is an individual who is currently applying or considering applying for a Loan.
• “Bank” is defined in the preamble to these Terms.
• “Borrower” is an Applicant who has applied for and been approved for a Loan. It also includes any co-Borrowers associated with the Loan.
• “Borrower Information” includes any personal information about an Applicant or Borrower that is obtained in connection with a Loan, Credit Application, Fund Request, or any related transaction. This information may be collected through a Credit Application.
• “Buildertrend” means the Bank’s partner which provides the Buildertrend Software construction project management software and application used by the Contractor and the Borrower specifically related to the Borrower’s home improvement project.
• “Buildertrend Software” means the construction project management software and application used by the Contractor and the Borrower specifically related to the Borrower’s home improvement project.
• “Business Day” means any day that is not a Saturday, Sunday, a federal holiday recognized by the United States government, or a day on which banks in Salt Lake City, Utah, are closed.
• “Contractor” is the individual or entity named as the Contractor in the Program Application. If the Contractor is not publicly traded, it explicitly includes all Persons who have a direct or indirect ownership interest in the Contractor. By participating in the Program, the Contractor confirms that they have obtained all necessary authorizations and approvals from such Persons to include them in the definition of Contractor.
• “Contractor Fee” is defined in Section 9 below.
• “Credit Application” means the Borrower’s application submitted through the Buildertrend Software to the Bank in connection with a Loan, Fund Request, or any related transaction.
• “Fund Request” is a Contractor’s request to process a transaction through the Program. This request is made to pay for Offerings purchased from the Contractor based on an Invoice.
• “Governmental Authority” means any court, board, agency, commission, office or authority of any nature whatsoever or any governmental unit (federal, state, commonwealth, county, district, municipal, city or otherwise), including the Office of the Comptroller of the Currency, the Department of Justice, the Board of Governors of the Federal Reserve System, and any Regulatory Authority, whether now or hereafter in existence.
• “Invoice” is a record, either in paper or electronic form, of a sale made by the Contractor to a Borrower. It includes a detailed description of all purchased Offerings, the transaction date, the total amount due (including applicable taxes), and compliance with relevant laws.
• “Loan” means a loan provided by Bank to a Borrower under the Program. The Borrower applies for the Loan to finance purchases of Offerings from the Contractor.
• “Loan Agreement” is a written agreement between Bank and a Borrower that outlines the terms and conditions of a Loan.
• “Loan Documents” include the Loan Agreement, relevant Truth-in-Lending Act disclosures, the Bank’s privacy notice, and any other documentation or communications from Bank. These documents may also provide information regarding online Borrower accounts and describe the rights of Bank to collect payments from delinquent Borrowers.
• “Loss” is defined in Section 24(a) below.
• “Offerings” refer to any goods, services, or merchandise that the Contractor offers, sells, distributes, or provides (including installation services). However, real property, gift cards, and any other goods, services, or merchandise designated by the Bank as ineligible for the Program through the Operating Instructions or other notices are excluded. Additionally, Offerings do not include any cash-out transactions that result in cash being disbursed to the Borrower.
• “Operating Instructions” include the following (without limitation): training materials, guidelines, documentation, procedures, and other requirements that the Bank communicates to the Contractor from time to time, as may be amended by the Bank from time to time.
• “Person” means an individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated organization, or any other legal entity.
• “Program Indemnified Person” is defined in Section 24(a) below.
• “Program” is the home-improvement lending program administered by the Bank. The Program facilitates the provision of home improvement loans to customers.
• “Program Application” means the Program application for which Contractor agrees to be bound by these Terms.
• “Regulatory Authority” means the Utah Department of Financial Institutions (“UDFI”), the Federal Deposit Insurance Corporation (“FDIC”) and any local, state or federal regulatory authority, including the Consumer Financial Protection Bureau (“CFPB”), that currently has, or may in the future have, jurisdiction or exercising regulatory or similar oversight with respect to any of the activities contemplated by these Terms or any other Program document or to the Bank or Contractor (except that nothing herein shall be deemed to constitute an acknowledgement by the Bank that any Regulatory Authority other than the UDFI and the FDIC has jurisdiction or exercises regulatory or similar oversight with respect to the Bank).
• “Reserve Account” is defined in Section 18 below.
• “Risk Adjustment” is defined in Section 9(a) below.
• “Terms” refer to these Nelnet Bank Home Improvement Loan Contractor Terms and Conditions, as modified or amended as permitted.

2. Nelnet Bank Home Improvement Loan Program

Contractor agrees to participate in the Program in accordance with these Terms, including the Operating Instructions, to enable Contractor’s customers to apply for Loans from Bank. These Loans are intended for the purchase of eligible Offerings provided by Contractor, and they are funded by the Bank. Contractor acknowledges that Bank is committed to meeting or exceeding all applicable regulatory requirements for the Program, and Contractor plays a crucial role in assisting Bank in ensuring compliance with such requirements.

3. Overview of the Contractor’s Obligations and Responsibilities under the Program

• (a) Contractor’s obligations and responsibilities under the Program are outlined in these Terms and the Operating Instructions. These obligations and responsibilities include:
  • (i) Ensuring that all employees, representatives, or agents involved with the Program are informed of the requirements related to offering the Program to Contractor’s customers. Employees or agents with sales and finance responsibilities must complete the orientation and training provided by the Bank or Buildertrend.
  • (ii) Promoting the Program in a manner that is legally compliant, accurate, complete, unbiased, and fair.
  • (iii) Ensuring that Loan proceeds are used solely for home improvement offerings.
  • (iv) Taking reasonable measures to prevent fraudulent activity by Applicants, Borrowers, or Contractor’s employees, agents, or subcontractors.
  • (v) Cooperating fully with Bank in investigating and resolving Applicant and Borrower escalations, complaints, and disputes related to Contractor.
  • (vi) Responding within five Business Days, or a shorter period as required by these Terms, Applicable Law, or a Governmental Authority, to any requests for information, audits, reviews, or dispute resolutions involving a Borrower or Applicant.
  • (vii) Maintaining strict confidentiality of any information received about Borrowers, Applicants, or Loans.
  • (viii) Providing Bank with timely information related to Contractor’s participation in the Program and any Borrower or Applicant, as requested by Bank. Bank may share this information with Buildertrend.
  • (ix) Adhering to the Compliance Best Practices as attached to these Terms and incorporated herein as Exhibit A.
• (b) In addition to other obligations and responsibilities, Contractor shall not:
  • (i) Prepare or distribute any written materials regarding the Program, except those provided or preapproved in writing by Bank.
  • (ii) Discuss with an Applicant the likelihood of their approval for a Loan or discouraging an Applicant to apply for a Loan.
  • (iii) Provide misleading, confusing, or incomplete information about the Program, including interest rates or Loan terms and conditions.
  • (iv) Obtain credit reports on Applicants or Borrowers from the Bank.
  • (v) Add or disclose any fees, including the Contractor Fee, to the prices charged to Applicants or Borrowers for Loan Credit Applications or usage.
  • (vi) Discriminate against any Applicants or Borrowers with respect to any aspect of the credit transaction, Loan Credit Application, and its products or services.
  • (vii) Engage any subcontractor who does not hold the proper licenses required by applicable legal or regulatory requirements for projects funded, either wholly or partially, by a Loan.
• (c) If Bank determines that Contractor has failed to comply with these Terms, Bank may suspend Contractor’s participation in the Program and take appropriate action, including terminating these Terms.
• (d) Contractor acknowledges that Bank reserves the right to verify Contractor’s licensing status at any time during the course of the Program.

4. Modification

Bank has the authority to modify these Terms by providing written or electronic notice to Contractor. If any modifications are made, Contractor’s continued participation in the Program for new Credit Applications after the effective date of such modifications will indicate Contractor’s acceptance of the modified terms and agreement to be bound by them. If Contractor does not wish to accept the modifications, it must refrain from submitting any Credit Applications following the effective date of the modifications and must notify Bank in writing of its decision.

5. Promotion of the Program.

(a) If Contractor decides to participate in the Program, Contractor agrees to promote the Program, in a commercially reasonable manner, and in full compliance with these Terms, the Operating Instructions, and all Applicable Laws. Any written material related to the Program, including references to Contractor’s participation or specific Loan credit terms or products accepted by Contractor, must be prepared or provided by Bank. If Contractor prepares such material, it must obtain prior review and approval from Bank (at its sole discretion) before using it. However, this review and approval only pertain to Program-specific representations and statements and should not be construed as a review or approval of advertising or solicitation materials for any other purpose or compliance with unrelated local, state, or federal laws, except as it relates to the Program. Bank may provide feedback unrelated to the Program without constituting review or approval.

(b) Contractor is prohibited from charging Borrowers any fees as a result of applying for or using their Loan to pay Contractor. Specifically, Contractor may not pass on any charges or fees imposed by the Program on Contractor or Contractor Fee paid by Contractor for its participation in the Program. Contractor may consider these fees as part of its overhead costs, similar to expenses like electricity or fuel, which are distributed across all customers regardless of whether they use a Loan to make their purchases from Contractor.

6. Loan Terms and Approval.

(a) Through the Program, Bank has the option to offer Loan(s) to Applicants under a separate Loan Agreement between the Bank and the qualified Applicant. Regarding these Terms, Bank:

• (i) Holds sole authority to determine the terms and conditions of the Credit Application, Loan Agreement, and each Loan. This includes aspects such as the interest rate, maximum amount, and term of the Loan.
• (ii) Can prospectively modify these terms and conditions for Loans approved after the modification.
• (iii) Has the right to change the credit standards and loan pricing at any time without prior notice to Contractor.
• (iv) Retains the discretion to reject or approve Credit Applications at its sole discretion.

(b) Bank is not obligated to take any action regarding a Loan, including accepting a Credit Application or providing future credit to an Applicant or Borrower. Bank has no obligation to approve any specific Credit Application or Loan or to approve Credit Applications or Loans that meet specific requirements. Additionally, Bank may withdraw a previously issued Loan approval before the Loan is funded. Unless withdrawn earlier, Loan approvals will automatically expire at the end of the applicable credit product’s purchase window. Bank also have the flexibility to suspend or reinstate any of the Loan products offered in connection with the Program.

(c) Contractor acknowledges and agrees that it holds no ownership interest in the Loans.

7. Credit Applications.

The Contractor agrees that, in accordance with these Terms and the Operating Instructions, they shall not apply for credit on behalf of the Borrower. The Borrower must personally use their own device to apply for credit in the Program. Additionally, the Contractor shall provide its sales and finance employees with the necessary link to enable Borrowers to independently submit Credit Applications in the Program.

8. Submitting Funding Requests.

Once a Loan is approved by Bank:

(a) Contractor must submit a funding request for each transaction. Each transaction submitted for processing through the Program is subject to borrower authorization. If Borrower authorization is not obtained, Bank will deny the transactions.

(b) Bank, along with Buildertrend, will provide Contractors with an online portal for the purpose of viewing relevant Borrower Information and submitting Funding Requests. Contractors must comply with all applicable policies, procedures, and terms of use related to the online portal, and Contractor is responsible for ensuring that its employees, agents, and contractors also comply with them when using such platforms on Contractor’s behalf.

9. Fees.

(a) For each funded Loan, Contractor will pay Bank a Contractor fee (“Contractor Fee”). The Contractor Fee covers Contractor’s access to the Program, including the Program technology platform for Applicants to apply for Loans. The specific Contractor Fees are detailed at https://nelnetbank.com/home-improvement-loan-contractor-terms-and-conditions (“Fee Schedule”). Bank may modify the Fee Schedule by giving at least five (5) days written notice to Contractor, and any modifications will apply to Loans approved on or after the specified effective date in the notice. The Fee Schedule, as amended from time to time, is incorporated into these Terms. Contractor fees will be automatically deducted from each disbursement sent to the Contractor. Net loan proceeds will be sent to the Contactor’s bank account.

(b) The Contractor Fee shall be seven percent (7%); however, it is subject to change as specified herein. Any Contractor Fee detailed on an updated Fee Schedule at https://nelnetbank.com/home-improvement-loan-contractor-terms-and-conditions shall control.

(c) Contractor shall provide a valid US-based bank account for the purpose of receiving payments under the Program. Contractor agrees that Bank is authorized to deposit funds directly into the designated bank account provided by the Contractor. The Contractor shall promptly update the bank account information within the Buildertrend Software. Upon receipt of the US-based bank account information, the Bank shall validate the account to ensure the Contractor information received via the application is accurate and to ensure the Contractor has a valid US-based bank account in good standing for purposes of the Accounts required pursuant to this Agreement. This information will not be used for any credit decisioning purposes.

10. Borrower Payments.

Contractor acknowledges that Bank has the exclusive right to receive payments on Loans. Contractor agrees not to engage in any collection efforts related to a Loan unless specifically authorized in writing by Bank. In the event that Contractor receives a payment related to a Loan, Contractor agrees to return the payment to the Borrower. Contractor acknowledges that any payments made by Borrowers to Contractor via check, money order, or other instrument and intended for Bank shall be deemed endorsed by Contractor in favor of the Bank. Contractor authorizes Bank to provide any necessary endorsements on behalf of Contractor. Contractor further agrees that if the Contractor makes any payments on behalf of a Borrower towards a Loan, Contractor shall ensure that prior to making any such payments, the Borrower acknowledges and understands that the Borrower remains ultimately responsible for making payments on the Loan in accordance with the Loan Agreement. In the event of Contractor’s non-compliance with this provision, Bank may, at its sole discretion, suspend Contractor’s right to submit new funding transactions or Credit Applications without notice or terminate these Terms.

11. Representations and Warranties

(a) Contractor represents and warrants the following for each Credit Application, Fund Request, or other material related to the Program:

• (i) Each Loan Agreement, Invoice, and Fund Request:
  • (A) Arises from a legitimate sale of Offerings by Contractor with the Borrower’s consent.
  • (B) Is exclusively used for purchasing the described Offerings, which are accurately described, fit for their intended purpose, delivered to the Borrower, and any required services have been satisfactorily performed.
• (ii) There are no undisclosed or unrecorded rights that could result in mechanic’s, materialman’s, or laborer’s liens, except for rights in favor of Contractor, which Contractor agrees not to assert to the detriment of Bank.
• (iii) Borrower does not have any claims or defenses regarding payment based on Contractor’s materials, workmanship, acts, omissions, or any other factor.
• (iv) If a standard warranty is breached, Contractor will remedy the breach within 30 days of notice.
• (v) Contractor has not increased the purchase price or added fees due to the Borrower’s use of the Loan.
• (vi) Contractor has not discriminated against any Applicant or Borrower based on protected characteristics or engaged in practices that negatively impact protected classes.

(b) Contractor also represents and warrants the following:

• (i) Contractor is duly organized, validly existing, and in good standing under its jurisdiction of organization, with the necessary power and authority to conduct its business and fulfill its obligations.
• (ii) Contractor has the requisite power and authority to execute, deliver, and perform these Terms and complete the transactions described herein.
• (iii) Contractor is duly licensed and will maintain all necessary state and contractor licenses in good standing throughout the term of these Terms.
• (iv) The execution, delivery, and performance of these Terms have been duly authorized by Contractor and do not violate any government or contractual restrictions applicable to Contractor.
• (v) These Terms have been duly executed and delivered by Contractor, constituting a legally binding obligation enforceable in accordance with its terms.
• (vi) The information provided in the onboarding process the Credit Application and is accurate and complete, and Contractor will promptly notify Bank of any changes or inaccuracies.

(c) Contractor represents and warrants compliance with all Applicable Laws, regulations, and licensing requirements, including those related to privacy, data security, sale of Offerings, point-of-sale practices, state consumer protection laws, and representations made by Contractor’s employees and representatives. Contractor will promptly notify Bank of any changes in licenses, permits, approvals, certifications, or any governmental or regulatory actions. Non-compliance may result in termination of these Terms by Bank.

(d) Contractor represents and warrants that it will not breach any agreements with third parties related to the transactions covered by these Terms, including the Invoice, and will promptly inform Bank of any events that may adversely affect Contractor’s operations or ability to fulfill its obligations under outstanding Invoices.

12. Refunds

(a) Contractor agrees that in the following circumstances, Bank may demand a refund and charge Contractor accordingly:

• (i) Bank determines that Contractor has breached its obligations, representations, warranties, or if the transaction or related documents are fraudulent, illegal, subject to cancellation, rescission, avoidance, or offset due to negligence, fraud, misrepresentation, or dishonesty by the Borrower, Contractor, its agents, employees, representatives, or franchisees.
• (ii) Bank may, at its discretion and with prior notice to Contractor, settle any claim made by a Borrower that could result in a refund, for an amount up to the price paid for the disputed Offerings, not exceeding the Fund Request’s face amount.
• (iii) If Bank exercises its right to chargeback or seek a refund, it may set off or recoup the amount charged back or refunded against sums due to Contractor. If the chargeback or refund exceeds sums due to Contractor, Bank may demand payment for the excess amount.
• (iv) Any refund by Contractor does not affect Contractor’s right to pursue the Borrower for the unpaid amount of the relevant Offerings, subject to the terms of the Invoice and applicable law. Contractor assumes all liability and risk associated with recovering such amounts from the Borrower without recourse or liability to Bank.
• (v) Bank will promptly notify Contractor of Borrowers’ requests for refunds. Contractor must address any disputes or circumstances outlined in Section 12(a) above to Bank’s reasonable satisfaction within the specified timeframe.
• (vi) If a refund occurs within 30 days of initial funding and is not due to Contractor’s bad faith, Bank will refund the Contractor Fee for the relevant portion of the Loan. Bank has no obligation to refund other Contractor Fees.

13. Authorization for Automatic Direct Deposits (ACH Credits) and Direct Debits (ACH Debits)

(a) Upon the effective date of these Terms, Contractor grants Bank a standing authorization to initiate credit entries for amounts owed to Contractor under these Terms. Additionally, Contractor grants the Bank a standing authorization to initiate debit entries, as determined by Bank, for any credit entries made in error, Contractor Fees, or amounts owed by Contractor under these Terms, including amounts subject to chargebacks or refunds. Bank will provide Contractor notice pursuant to Applicable Law prior to initiating any debit entries. These entries will be made to the Contractor Account specified by Contractor and credited or debited as needed throughout the Project as determined by the Contractor or Bank. Should the Contractor wish to revoke the standing authorization to initiate debit entries from the Contractor Account, the Contractor must provide a minimum of fifteen (15) business days’ notice and any required information for the Bank to set up the new Contractor’s Account for such entries. Both Contractor and Bank acknowledge that the initiation of ACH transactions must comply with Applicable Law.

(b) The authorizations stated in Section 13(a) above will remain in effect until all Loans are repaid. Contractor must promptly notify Bank of any changes to the Contractor Account for ACH credits and debits. Bank will comply with written notifications from Contractor that modify the bank account information, provided that the notification is received with sufficient time for Bank and the bank or financial institution to act accordingly.

(c) Contractor agrees not to object or attempt to reverse any ACH debit initiated by Bank in accordance with these Terms. If there are insufficient funds in the Contractor Account to cover an ACH debit or if the debit cannot be completed for any other reason, Bank may immediately suspend Contractor’s participation in the Program without notice, withhold Loan fundings, and Contractor must promptly make full payment of the amount due under these Terms by wire transfer of immediately available funds to the account designated by Bank.

14. Operating Instructions

(a) Contractor is obligated to fulfill all requirements specified in the Operating Instructions and any additional requirements communicated by Bank from time to time. The Operating Instructions are considered an integral part of these Terms, and in case of any inconsistencies between the Operating Instructions and these Terms, these Terms shall prevail.

(b) Despite the notice provisions outlined in these Terms, Contractor acknowledges that Bank may publish the Operating Instructions on the Program’s website, and such publication shall serve as valid notice to Contractor. Contractor agrees to regularly check the website on a monthly basis to stay informed about any updates or modifications to the Operating Instructions.

15. Information Security

(a) Contractor is prohibited from disclosing Borrower Information, including nonpublic personal information (as defined in the Gramm-Leach-Bliley Act, its implementing regulations, and other similar laws and regulations), to any third party or to any individual within Contractor’s organization who does not require such information for the performance of their duties related to the Program. Contractor is also not allowed to retain Borrower Information beyond what is necessary under these Terms. If Contractor collects personal identifying information via the Internet, Contractor must have a comprehensive privacy policy in place and make it available on their website.

(b) Contractor must maintain the confidentiality of all information, software, systems, and data received from Bank or any other source in relation to the Program. Contractor may only disclose such information to individuals within their organization who are directly involved in the implementation and execution of the Program, and it must be used solely for the purpose of fulfilling Contractor’s obligations under these Terms.

(c) Contractor is responsible for maintaining effective information security policies and procedures to safeguard Borrower Information. This includes administrative, technical, and physical safeguards to ensure confidentiality, protect against threats or unauthorized access, and ensure proper disposal of Borrower Information. Personnel handling Borrower Information must be trained in implementing these policies and procedures. Regular audits and reviews should be conducted to assess the effectiveness of these security measures and make adjustments as necessary.

(d) Contractor must promptly notify Bank of any unauthorized access or security breach involving Borrower Information and take appropriate actions to prevent further unauthorized access and mitigate the breach. Contractor should cooperate with Bank’s investigation, provide necessary notices to law enforcement, regulatory authorities, affected Applicants, Borrowers, and customers, as deemed appropriate by Bank. Contractor is responsible for covering the expenses related to such incidents.

(e) Bank has the right to review and audit Contractor’s information security policies, procedures, and systems upon providing notice. Contractor must address any identified weaknesses in a timely manner.

(f) If applicable privacy or data security laws require Bank to comply with requests from Applicants or Borrowers regarding their personal information, Contractor agrees to assist Bank promptly upon request to fulfill such requests, including accessing, deleting, modifying, or restricting the processing of personal information.

16. Borrower Complaints

Within five Business Days of receiving a written or verbal complaint from a Borrower or any third party, including regulatory authorities, Contractor will provide the Bank with a copy of the complaint. Contractor agrees to cooperate with the Bank in responding to complaints. Additionally, Contractor agrees to work in good faith with the Bank to determine if a Borrower complaint is related to faulty installation (if installed by Contractor or a contractor acting on behalf of Contractor) or defective Offerings covered under warranty. If either of these conditions apply to the Borrower complaint, Contractor will make all necessary corrections at no cost to the Bank or the Borrower.

17. Term, Suspension and Termination

(a) These Terms will be effective from the date the Bank notifies Contractor of their approval to participate in the Program and will remain in effect until one party provides written notice of termination to the other party. The termination of these Terms will not affect the rights of either party to seek remedies for breaches that occurred prior to termination or for matters related to Loans originated before termination. The termination of these Terms will not affect any matters related to applications in progress prior to the effective date of the termination. Certain provisions of these Terms that continue after termination, including Section 24 below will apply.

(b) In addition to the termination right mentioned in this Section 17, the Bank may suspend Contractor’s ability to submit new funding transactions or Credit Applications under these Terms in the Bank’s sole discretion. Additionally, the Bank reserves the right to remove Contractors from the Program in the event of low performance, approval rate issues, Borrower complains, or non-compliance with the terms and obligations set forth in these Terms, see Section 19.

(c) Even after termination of these Terms, the provisions will continue to apply to Fund Requests that were accepted or approved by the Bank before termination. However, if an authorization number for a Fund Request is no longer valid, the Bank is not obligated to accept that Fund Request.

(d) If either party breaches these Terms, the non-breaching party has the right to pursue all available legal or equitable remedies. The non-breaching party can exercise these remedies concurrently or separately, and the exercise of one remedy does not prevent the right to pursue any other remedy.

18. Regulatory Examinations, Audits, and Financial Information

(a) The Bank (either directly or by the use of accountants or other agents or representatives or through its federal or state regulators, or federal contractors, either onsite or remote as the Bank deems appropriate) may audit, inspect and review the files, records and books of the Contractor pertaining to matters involving these Terms during its Term and for one year thereafter. In connection with such audits and inspections, Contractor shall permit the Bank to access and audit Contractor’s applicable books and records; (ii) review controls around pre-engagement employee screening, information systems and cybersecurity, and (iii) to assess, audit, and otherwise verify Contractor’s compliance with these Terms and compliance with all Applicable Laws. In addition, Contractor agrees to submit such information to Bank as any Bank may from time to time reasonably require in order to ascertain Contractor’s compliance with the requirements of these Terms and compliance with all Applicable Laws.

(b) If the Bank requests documents or information as part of an audit described herein this Section 18, Contractor will provide (or direct the applicable third party to provide) the requested information by no later than the earlier of (i) fifteen Business Days after receipt of the Bank’s written requires; or (ii) such earlier time required by any Regulatory Authority or Applicable Law in connection with such audit.

(c) If any audit results in a conclusion that Contractor is not in compliance any of its material obligations under in these Terms, or results in the identifications of any control deficiency or other error or deficiency that could reasonably be expected to have a material, adverse impact on the Contractor’s obligations and responsibilities, then Contractor shall promptly, and at its sole expense, correct the noncompliance, error or deficiency, or if Contractor is unable to correct such noncompliance, error or deficiency within thirty days, provide to the Bank a commercially reasonable plan for correcting such noncompliance, error or deficiency, If Contractor fails to promptly remediate to Bank’s satisfaction, Bank shall be entitled to terminate these Terms, or relevant portion of these Terms by providing Contractor written notice of termination.

(d) In addition to the audit rights described in this Section 18, Contractor shall, when requested by the Bank, make all records of charges under these Terms available for inspection by such person or persons as Bank designates as its authorized representative(s), who shall have the right to take copies of or extracts from any such records kept. If, as a result of an audit, it is determined that Contractor has overcharged the Bank or the Borrower, the Contractor shall promptly pay to the Bank or Borrower, as applicable, the amount of the overcharge.

(e) CONTRACTOR ACKNOWLEDGES AND AGREES THAT THE PERFORMANCE OF ACTIVITIES BY EXTERNAL PARTIES FOR BANK IS SUBJECT TO FDIC AND UDFI EXAMINATION OVERSIGHT, INCLUDING ACCESS TO ALL WORK PAPERS, DRAFTS, AND OTHER MATERIALS. THEREFORE, THE FDIC AND UDFI GENERALLY HAVE THE AUTHORITY TO EXAMINE AND TO REGULATE THE FUNCTIONS OR OPERATIONS PERFORMED OR PROVIDED BY THIRD PARTIES TO THE SAME EXTENT AS IF THEY WERE PERFORMED BY LENDER ITSELF ON ITS OWN PREMSIS

19. Reserve Account; Related Matters

If (a) the Bank determines that (i) Contractor’s financial condition has deteriorated or is deemed unacceptable in the Bank’s sole discretion, (ii) Contractor is in breach of these Terms, (iii) the Program has experienced an unusually high number of disputes or complaints from Borrowers or third parties, including regulatory authorities, regarding Contractor, or (iv) the number of Fund Requests submitted by Contractor significantly deviates from historical trends, (b) the Bank becomes aware of any other fact, event, or circumstance related to Contractor that warrants the establishment of a reserve fund, (c) an ACH debit initiated by the Bank cannot be completed, or (d) a termination notice has been given by either party, then, in each such case, (x) Contractor must promptly pay Bank upon demand, or (y) Bank may withhold the necessary amount from any amounts owed to Contractor for any Fund Request, or (z) Bank may directly debit Contractor’s bank account to fund a reserve account (“Reserve Account”). The Bank has the right to charge the Reserve Account for any amounts owed by Contractor or otherwise due under these Terms. Contractor’s obligations to the Bank are not limited by the amount held in the Reserve Account. The Reserve Account does not exempt Contractor from paying any amount they owe under these Terms. Contractor is not entitled to interest on amounts held in the Reserve Account. The Bank will refund any remaining amount in the Reserve Account when it determines that the Reserve Account is no longer necessary. However, no refund will be made later than one year from the termination date of these Terms. Furthermore, if any of the events described in clauses (a), (b), or (c) of the first sentence of this Section , the Bank may impose limitations on Contractor’s participation in the Program or take any other appropriate action it deems necessary.

20. Assignment

Contractor may not transfer or assign these Terms without the prior written consent of Bank. Any attempt to transfer or assign without such consent shall be invalid. Bank, however, may transfer or assign these Terms and any of its rights or obligations under these Terms at any time. In the event of such assignment, the assignee shall have the same rights and remedies as the assigning party under these Terms. The assigning party shall remain responsible for its obligations under these Terms prior to the assignment, unless the assignment is part of a transfer of all or substantially all of its assets and the assignee assumes its obligations under these Terms. These Terms are binding on the parties and their respective successors and permitted assigns.

21. Insurance

During the term of these Terms and as long as Contractor has obligations related to the Program, Contractor must maintain insurance coverage at its own expense, in accordance with the state(s) they do business in. The insurance should provide protection against risks that are typical for businesses of similar size in Contractor’s industry. The insurance policy should be issued by a reputable carrier with a rating of “A VIII” or higher from A.M. Best, or a carrier that is otherwise acceptable to Bank. Bank should be named as an additional insured party on each policy. If requested by Bank, Contractor must provide a certificate of insurance as proof of coverage and any subsequent renewals. Contractor must also notify Bank within 15 days if any required insurance policy is cancelled, not renewed, or significantly modified.

22. Merger and Integration

These Terms, along with the Operating Instructions, contain the complete agreement between Bank and Contractor regarding the subject matter discussed. Any previous agreements, whether written or oral, are replaced by these Terms and the Operating Instructions. These Terms can only be modified, amended, waived, or supplemented as stated within. All exhibits, schedules, addendums, and documents delivered in accordance with these Terms are considered an integral part of these Terms.

23. Contractor Obligations Unaffected

Contractor’s obligations under these Terms remain unchanged and unaffected by any settlement, extension, forbearance, or modification of terms granted by Bank in relation to any Loan. Furthermore, the release of a Borrower’s obligations by a court or through legal means does not release Contractor from its obligations under these Terms.

24. Indemnification; Related Matters

(a) Contractor agrees to indemnify, defend, and hold harmless Bank and its officers, directors, employees, and agents (referred to as “Program Indemnified Persons”) from any losses, claims, liabilities, damages, or expenses arising from, the following, and also agrees to reimburse the Program Indemnified Persons for any legal and other expenses incurred in connection with such matters:

• (i) Contractor’s breach of any representation, warranty, covenant, or obligation under these Terms;
• (ii) Contractor’s failure to comply with Applicable Laws;
• (iii) Negligence, fraud, errors, or misconduct of Contractor or its employees, subcontractors, representatives, or agents;
• (iv) Contractor’s failure to fulfill its obligations or responsibilities to any Person, including non-payment of Contractor Fees;
• (v) Defects in the Offerings provided by Contractor or breaches of warranty related to such Offerings;
• (vi) Contractor’s bankruptcy or insolvency proceedings, except for losses resulting from the gross negligence or willful misconduct of a Program Indemnified Person.

(b) If Contractor breaches any representation or warranty or if a Borrower asserts a claim or defense arising from a transaction documented by a Credit Application, Loan Agreement, Invoice, or Fund Request, Contractor will refund the affected Loan amount and related charges upon demand. Contractor will also indemnify and hold the Program Indemnified Persons harmless for any breaches, damages, and costs resulting from such events. Bank may deduct any amounts owed by Contractor from any payments due to Contractor.

(c) If a Program Indemnified Person receives a claim or demand or is subject to a suit or proceeding that may result in a claim under this indemnification provision, the indemnified party must promptly notify the indemnifying party. The indemnifying party has the right to participate in the settlement or defense of the claim, and both parties must cooperate in the settlement or defense at no cost to the indemnified party.

(d) If any Program Indemnified Person is contesting or defending against any action, suit, proceeding, or investigation related to a transaction under these Terms or involving Contractor, Contractor must cooperate, provide personnel and access to relevant records, and bear the sole cost and expense of such cooperation.

25. Nonwaiver and Extensions

The parties cannot be considered to have waived any rights or remedies under these Terms through any action, delay, omission, or other means. Each party acknowledges that if one party fails to enforce any of its rights under these Terms, it does not mean that it has given up any other rights or that the same right cannot be enforced in the future.

26. Ownership of Program

Contractor and its parent, subsidiary, or other affiliates (if any) do not gain any ownership rights or title to any components of the Program, including the Operating Instructions, written specifications, training materials, programs, systems, screens, or any related documentation or materials. These elements solely belong to Bank as their exclusive property. Contractor agrees to use these Program elements and related information solely for the purpose of utilizing the Program under these Terms and for no other purposes.

27. Rights of Persons Not a Party

Unless expressly stated otherwise in these Terms, these Terms do not grant any rights to any Person who is not a party to these Terms. This includes individuals who may be intended beneficiaries or any other third parties.

28. Governing Law; Venue; Severability

These Terms will be governed by and interpreted in accordance with the laws of the State of Utah, without considering its conflict of laws principles. Any legal action or proceeding arising out of or relating to these Terms shall be exclusively brought in the state or federal courts located in the State of Utah. The parties irrevocably consent to the personal jurisdiction and venue of such courts for the purpose of any such action or proceeding. If any provision of these Terms is determined to be illegal, unenforceable, or in conflict with the law, that provision will be considered invalid, but it will not affect the validity of the remaining provisions. The parties agree to make any necessary adjustments to the Terms to reflect their original intentions to the maximum extent permitted by law.

29. Independent Contractor

These Terms do not create a partnership, joint venture, agency relationship, or any other type of business association between Contractor and Bank. Bank and Contractor are separate entities and operate as independent contractors. Neither party has the authority to speak on behalf of, make commitments for, or bind the other party.

30. Actions of Employees

For all purposes, including the provisions of Section 24 above, each party is accountable for the actions of its employees. If an employee’s employment is terminated, the party that employed that former employee will take reasonable measures to ensure that the former employee no longer has access to the Program systems. This may include changing passwords or any other necessary steps to restrict access to program information or confidential data.

31. Notices

All requests, notices, and communications under these Terms must be in writing. Notices will be considered valid if: (a) sent by regular first-class mail and received within three Business Days; (b) sent by a commercial overnight carrier with proof of delivery and received within one business day; or (c) sent by email, provided that the email is actually delivered to the intended recipient. All notices to Bank should be sent to the address provided below or to any other address, fax number, or email address that Bank informs Contractor of in writing. Notices to Contractor should be sent to the postal or street address, or email address specified in the Program Application or to any other address, or email address that Contractor informs Bank of in writing.

If to Bank:
Nelnet Bank, Inc.
13907 S. Minuteman Drive
Draper, UT 84020
Attention: Home Improvement Loan Department
Email: HomeUpgrade@nelnetbank.com

With a copy to:
Nelnet, Inc.
121 S. 13th St. Ste. 100
Lincoln, NE 68508
Attention: Legal Department
Asklegal@nelnet.net

32. Execution

These Terms are established when Contractor submits the Program Application, which serves as Contractor’s legally binding electronic signature and is considered an original document. Any changes or modifications to these Terms will be made as described in Section 4 above and Section 9 above, as applicable.

33. Marks

Contractor gives Bank permission to use its name, trademarks, logos, and other marks for the purpose of administering and operating the Program. This license is nonexclusive and continues even after these Terms have ended.

34. Press Release

Contractor cannot make any public announcements about the Program or its relationship with Bank without getting Bank’s written permission first.

35. Call Monitoring

Bank may monitor or record calls between Contractor and Bank for quality assurance or other purposes.

36. DAMAGES; ATTORNEYS’ FEES

CONTRACTOR IS RESPONSIBLE FOR PAYING ALL DAMAGES AND COSTS INCURRED IN ANY LEGAL ACTION OR COLLECTION PROCEEDING BROUGHT BY PROGRAM INDEMNIFIED PERSONS AGAINST CONTRACTOR. THIS INCLUDES ATTORNEYS’ FEES, COURT COSTS, INTEREST, FILING FEES, AND OTHER EXPENSES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BANK INDEMNIFIED PERSONS ARE NOT LIABLE FOR GENERAL, PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR COVER DAMAGES, INCLUDING LOSS OF PROFIT OR PERSONAL PROPERTY.

37. WAIVER OF JURY TRIAL; NO CLASS ACTION

THE PARTIES WAIVE THEIR RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION ARISING FROM THESE TERMS OR RELATED TRANSACTIONS AND AGREE THAT ANY SUCH ACTION WILL BE DECIDED BY A COURT, NOT A JURY. THIS PROVISION ALSO STATES THAT ANY LEGAL PROCEEDING WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT AS A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION.

38. Further Assurances

Each party agrees to execute additional documents and do whatever is reasonably requested by the other party to complete the transactions contemplated by these Terms.