TERMS OF USE
Last Updated: July 17, 2017
Welcome to the Customer Online Management System ("COMS") and all of its
component parts, including, without limitation, Analytics Online (collectively,
the "Site"). GE Commercial Distribution Finance Corporation and GE
Commercial Distribution Finance Canada including their respective affiliates and
private-label offerings (collectively, "Providers") provide the Site to
you subject to these Terms of Use. For the avoidance of doubt, solely in
connection with any financing of inventory to you as obligor, the term
"Providers" shall also include Brunswick Acceptance Company, LLC, Polaris
Acceptance, and NMHG Financial Services, Inc.
- Acceptance of Terms of Use; Privacy Notice. These Terms of Use
constitute a binding agreement between you (in your corporate capacity
and/or as an authorized employee or agent of the legal entity that you
represent) ("you", "your", or "yourself") and Providers. PLEASE READ THEM
CAREFULLY. By clicking the "I accept" button, completing the registration
process, and/or accessing or using the Site, you agree to accept and be
bound by these Terms of Use, including the
Privacy Notice for
the Site. These Terms of Use also supplement the terms and conditions of
any existing Manufacturer Online Agreement, Customer On-Line Management
System ("COMS") Agreement, Electronic Access Agreement, or any other written
agreement relating to the access, use, or any subject matter relating to the
Site between you and any of the Providers. In the event of a conflict
between these Terms of Use and the terms of any other written agreement
between you and any of the Providers regarding access and/or use of the
Site, the more specific terms and conditions apply and govern. IF YOU DO NOT
AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SITE.
- Registration. In order to use the Site, you may be required to
complete an initial registration form and become an "Authorized User."
As part of such registration process, you will be required to provide
Providers with certain information about yourself, including personally
identifiable information, (collectively, "User Information") which
you represent and warrant will be current, accurate, and complete at the
time of registration. Providers reserve the right, at their sole discretion,
to reject any registration for any lawful reason. Registrants whose request
for access is rejected may not use the Site, attempt to re-register without
Providers' prior express consent, or re-register using another individual's
information. All Authorized Users agree to promptly update their User
Information as necessary to ensure that such information at all times
remains, current, accurate, and complete.
- Passwords and Security. Use of the Site may require use of a
username and password (together, "Password"). You will be provided with the
option to designate a Password and Site access administrator in accordance
with the instructions set forth on the Site. Your administrator will be
responsible for, among other things, (i) granting access levels to,
designating roles for, and setting security levels for Authorized Users of
the Site, (ii) creating Passwords for Authorized Users, (iii) monitoring the
Site usage by Authorized Users, (iv) terminating Site access to Authorized
Users who violate these Terms of Use, whose roles and responsibilities
and/or security levels change, and who are no longer employed by You, (v)
making payments you owe to Providers arising from your financing or other
agreements with Providers in accordance with these Terms of Use , and (vi)
disclosing to, training, and ensuring compliance with these Terms of Use by
all Authorized Users. Before designating an Authorized User, you agree to
inform each such Authorized User that his or her use of the Site is subject
to these Terms of Use and that access to the Site will be allowed to him or
her only in compliance with these Terms of Use. You shall be responsible
for the security of your Password and agree to take all reasonable
precautions to protect the security and integrity of all Passwords and to
prevent their unauthorized use. Your Passwords should never be shared with
anyone except as noted below. You will be solely responsible for all actions
taken or not taken by an Authorized User or that arise from the use or
misuse of your Password, including, without limitation, all electronic fund
transfers, all downloads, uploads or display of information and/or data, and
transmissions by you or any third party of electronic records and electronic
signatures. You will also immediately notify Providers in writing if you
become aware of any unauthorized electronic fund transfers, access or use of
your Passwords and/or the Site, any other breach of security, or if any of
your Passwords are lost or stolen. For the avoidance of doubt, your responsibilities as detailed
under this section apply not only to your individual Password and all
actions related to its use or misuse, but also, where applicable, to the
Passwords of any Authorized Users accessing the Site who are subject to your
control as employees or otherwise. Such notice shall not release you from
responsibility for such loss, theft, security breach, unauthorized access or
use of your Password and/or the Site prior to Providers' receipt of such
notice from you. From time to time, Providers' support staff may log in to
the Site in order to maintain or improve the service offerings, including
the provision of assistance with technical issues. You hereby acknowledge
and consent to such access.
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Fees. The Site is provided to you by the Providers without cost
and for your convenience. If Providers elect to charge a fee in the future,
Providers will do so in accordance and compliance with Section 5.
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Changes to Terms of Use. Providers reserve the right, at their
sole discretion, to amend these Terms of Use at any time. IN THE EVENT OF
ANY MATERIAL CHANGES, A NOTIFICATION WILL BE POSTED ON THE SITE FOR THIRTY
(30) DAYS. Your continued use of the Site after such changes are posted will
constitute your agreement to and acceptance of any and all such changes.
Therefore, it is recommended that you periodically check the Site for
updates.
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Capacity to Contract. Use of the Site may result in the formation
of contracts between residents of different states or jurisdictions, as the
case may be. In order to use the Site, you must have the legal capacity to
contract under the laws of the state or jurisdiction from which you are
accessing the Site. Minors (i.e., individuals younger than the age specified
by the applicable state or jurisdiction's law at which they can enter into a
legally binding contract) may not use the Site. By using the Site, you
represent that you have the legal capacity or authorization to form binding
contracts.
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Consent to Electronic
Transactions.
Your affirmative actions in using the Site, such as clicking "I Accept",
"Submit", "Yes" and the like, and/or down loading or up loading of data,
signify that you agree to, adopt, and execute the action or electronic
record with the intention to be legally bound. "Electronic records"
refer to records or information created, generated, sent, communicated,
received, presented, or stored electronically. Such affirmative actions will
have the same legal force, effect, validity, and enforceability as if you
affixed a written signature to the electronic record, and such electronic
signature and electronic record shall be deemed to satisfy the writing and
delivery requirements of any applicable law. You agree to transmit, view,
and receive electronic records through the Site via the Internet using your
Password. Our electronic or other properly stored copy of such electronic
signatures and electronic records shall be deemed to be the true, complete,
valid, authentic, and enforceable copy of them. You agree not to contest the
admissibility, legal effect, validity, or enforceability of such electronic
signatures or electronic records in any proceedings arising out of the use
of the Site. Further, you (a) acknowledge that, regardless of whether you
are using a web browser with security features, we are unable to ensure that
data contained in any related Internet transmission between us will not be
intercepted by third parties, and (b) agree that Providers will not be
liable should any such interception occur.
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Consent to Receipt of Electronic Communications. You agree
and intend that these Terms of Use evidence and memorialize your affirmative
consent to receive electronic communications of documents including
transaction statements, billing statements, and any other records that may
be provided by Providers via the Site from time to time, in lieu of written
records of such documents or communications (the "Documents"). You
understand and acknowledge that you have the following rights and
responsibilities:
- you may elect to receive the Documents in writing by withdrawing your consent to
receive electronic communications by calling your account representative
or by addressing a withdrawal request by email to your account
representative. A withdrawal request will not become effective sooner
than 15 days from the date that you provide Providers with requisite notice
and you will remain responsible for all activity or transactions initiated
prior to deactivation of your access privileges, including, without
limitation, any applicable charges for the term during which the termination
date occurred;
- your withdrawal of consent to receive electronic communications may result
in imposition of other conditions, as Providers determine are necessary, in
their sole and reasonable discretion, including assessing charges to offset
costs incurred by Providers in delivering written communications instead of
electronic communications described herein.However, no such fees will
be instituted unless published on the Site (or other commonly accessible
website) for access and notice to users of such resources, or unless
Providers otherwise provide you with written notice thereof. Notices
by electronic publication will be deemed effective when posted or published
on such site(s) for general dissemination, or upon such later time as the
notice may indicate;
- your consent to receive electronic communications specifically under this
section is limited to content and data relating to the Documents, and does
not apply to other notices or communications between you and Providers;
- you may request a written copy of an electronic communication after consenting
thereto, subject to: (i) your payment of the fees chargeable by
Providers for producing and delivering such written copy; which Providers
may determine and establish from time to time in their sole discretion and
(ii) Provider's record retention policy in effect from time to time;
- you are responsible to review electronic communications presented via the Site
on a continuous basis; you are required to take any action to
acknowledge, correct, or reply to electronic communications in a timely
manner within such designated periods as may be established by Providers;
and all electronic communications provided through the Site will be deemed to
have been received by you at such time as they are made available on the
Site by Providers, regardless of whether and when you actually review such
electronic communications.
Information Accuracy. You warrant that you will only submit
and/or post information on the Site that is accurate and complete. Providers
do not review, check, or verify the accuracy or completeness, and are not
responsible for the content of, any information submitted to, transmitted
through, and posted on the Site by any Authorized User.
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User Conduct. You agree that you will not:
- Use the Site in any manner that could damage, disable, overburden, or
impair the Site.
- Interfere with the security of, or otherwise abuse, the Site,
or any services, system resources, accounts, servers, or networks connected
to or accessible through the Site or affiliated or linked sites. The use or
distribution of tools designed for compromising security (e.g., password
guessing programs, spoofing, cracking tools or network probing tools) is
strictly prohibited. If you become involved in any violation of system
security, Providers reserve the right to release your details to system
administrators at other websites in order to assist them in resolving
security incidents.
- Disrupt or interfere with any other person's use of the
Site or affiliated or linked sites.
- Attempt to obtain unauthorized access to the Site or portions
of the Site that are restricted from general access.
- Use or attempt to use another's account, service, or system
without authorization from Providers.
- Create or use a false identity on the Site.
- Post or otherwise disseminate on or through the Site harassing,
defamatory, libelous, tortuous, offensive, threatening, obscene, or
otherwise unlawful communications or materials of any
kind, or materials that infringe or violate any third party's copyright,
trademark, trade secrets, privacy, or other proprietary or property right or that
could constitute a criminal offense, give rise to civil liability, or otherwise
violate any applicable law.
- Use any robot, spider, or other automatic device, or manual
process to monitor or copy the web pages or the
content contained at the Site.
- Allow access to or use of the Site or any component thereof by or
for the benefit of third parties who are
not Authorized Users, including, without limitation, providing timeshare
services, service bureau services, outsourcing or consulting services, or
displaying and/or demonstrating the Site
or any content thereof, without Providers' prior written consent, or for
any unlawful purpose or in furtherance of any unlawful purpose.
- Upload or transmit to Providers' computer systems
any computer virus, worm, time bomb, or other harmful
programming routine.
- Frame any of the content of the Site, nor incorporate into
another Site or other service any intellectual property of Providers or
their licensors.
- Suspension or Termination of Access Rights. Providers reserve the
right, at their sole discretion, to investigate suspected violations of
these Terms of Use, and to suspend or terminate any Authorized User's use of
all or part of the Site upon their reasonable belief that such Authorized
User is in breach of any provision of these Terms of Use. Authorized Users
whose rights have been suspended or terminated for violation of these Terms
of Use may not, without Providers' prior permission, re-register (or cause a
third party to register on their behalf) for use of the Site.
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Changes to or Suspension of Service.
Providers reserve the right, at their sole discretion, to change, add,
suspend, or discontinue any aspect of the Site at any time.
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Disclaimer of Warranties; Limitation of Liability.
(a) THIS SITE, THE SOFTWARE, CONTENT, INFORMATION,
MATERIALS, SERVICE, DOCUMENTATION, REPORTS, AND DATA IS PROVIDED BY
PROVIDERS ON AN "AS IS" AND "AS AVAILABLE" BASIS. YOU EXPRESSLY AGREE THAT
YOUR USE OF THIS SITE IS AT YOUR SOLE RISK. THE CONTENT, INFORMATION,
MATERIALS, DOCUMENTATION, REPORTS, AND DATA INCLUDED ON OR OFFERED BY THIS
SITE OR PROVIDED THROUGH THIS SITE OR OTHER MEANS SHOULD NOT BE QUOTED OR
OTHERWISE REFERRED TO IN ANY FINANCIAL STATEMENTS OR IN ANY OTHER DOCUMENTS
NOR SHOULD IT BE FURNISHED TO ANY GOVERNMENTAL AGENCY OR OTHER PERSON UNLESS
REQUIRED BY LAW. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, PROVIDERS
AND THEIR RESPECTIVE AFFILIATES DISCLAIM ANY AND ALL WARRANTIES, CLAIMS, OR
REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT
LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, QUALITY, PERFORMANCE, NON-INFRINGEMENT, NOR ARE THERE ANY
WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE
USAGE WITH RESPECT TO THE OPERATION OF THIS SITE, SOFTWARE, CONTENT,
INFORMATION, MATERIALS, SERVICE, DOCUMENTATION, REPORTS, OR DATA INCLUDED ON
OR OFFERED BY THIS SITE OR PROVIDED THROUGH THIS SITE OR OTHER MEANS.
PROVIDERS AND THEIR RESPECTIVE AFFILIATES DO NOT WARRANT THAT: THIS SITE
AND/OR ANY SOFTWARE, CONTENT, INFORMATION, MATERIALS, SERVICE,
DOCUMENTATION, REPORTS, OR DATA INCLUDED ON OR OFFERED BY THIS SITE OR
PROVIDED THROUGH THIS SITE OR OTHER MEANS WILL MEET YOUR NEEDS OR BE
CORRECT, ACCURATE, TIMELY, RELIABLE, FREE FROM ERRORS; THAT DEFECTS WILL BE
CORRECTED; THAT THE OPERATION OF THIS SITE OR SERVICE WILL BE UNINTERRUPTED
OR AVAILABLE; AND/OR THAT THIS SITE, ITS SERVERS, OR ANY E-MAILS SENT FROM
PROVIDERS OR THEIR RESPECTIVE AFFILIATES ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN
ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE
OFFERINGS, COMPONENTS, AND SERVICES OFFERED UNDER, BY, AND THROUGH THIS SITE
AND/OR SERVICE.
(b) PROVIDERS WILL NOT BE LIABLE TO YOU OR ANY THIRD-PARTY
CLAIMANT FOR ANY DAMAGES OF ANY KIND, UNDER ANY THEORY OF LAW OR EQUITY,
WHETHER FOR BREACH OF CONTRACT, TORT, INDEMNITY, CONTRIBUTION, LOSS OF
BUSINESS OPPORTUNITY, LOSS OF PROFITS OR SALES, INTERFERENCE OF COMMERCIAL
RELATIONSHIP, BUSINESS INTERRUPTION, LOSS OF INFORMATION, INACCURATE
DISCLOSURE, OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THIS
SITE OR THE SOFTWARE, CONTENT, INFORMATION, MATERIALS, SERVICE,
DOCUMENTATION, REPORTS, OR DATA PROVIDED THROUGH THIS SITE OR OTHER MEANS
INCLUDING, BUT NOT LIMITED TO, INDIRECT, THIRD PARTY, INCIDENTAL, PUNITIVE,
AND CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT PROVIDERS ARE FOUND TO BE
LIABILE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO U.S.
$1000. ONLY IN CONNECTION WITH ANY FINANCING OF INVENTORY TO YOU AS OBLIGOR,
THE FOREGOING LIMITATION OF LIABILITY EXTENDS TO GENERAL ELECTRIC COMPANY,
BRUNSWICK CORPORATION, POLARIS INDUSTRIES INC., NACCO MATERIALS HANDLING
GROUP, INC. AND THEIR RESPECTIVE DIRECT AND INDIRECT SUBSIDIARIES
(c) CERTAIN STATE OR PROVINCIAL LAWS MAY NOT ALLOW LIMITATIONS ON
IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF
THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS,
OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Release. If you have a dispute with one or more users, you
release Providers (including their respective officers, directors, agents,
subsidiaries, joint ventures and employees) from claims, demands and damages
(actual and consequential) of every kind and nature, known and unknown,
arising out of or in any way connected with such dispute. If you are a
California resident, you waive California Civil Code §1542, which says: "A
general release does not extend to claims which the creditor does not know
or suspect to exist in his favor at the time of executing the release, which
if known by him must have materially affected his settlement with the
debtor."
- Indemnity. You agree to indemnify, hold harmless, and defend
Providers (including their respective joint venture partners, their parents,
subsidiaries and affiliates, and each of their respective officers,
directors, employees, and agents) (together, the "Indemnified Parties") from and against any and all liabilities, claims, suits,
actions, proceedings, damages, costs, losses and expenses, including
settlement awards and reasonable attorney's fees incurred by an Indemnified
Party that arise out of: (a) your breach of these Terms of Use; (b) your
violation of any law; (c) your breach of any contract with a third party;
(d) your liability to any third party, and/or any third-party claims, suits,
actions, proceedings, damages, costs, losses and expenses made against an
Indemnified Party, arising from your use of and/or inability to use the
Site, software, content, information, materials, service, documentation,
reports, or data ; (e) your infringement or misappropriation of the rights
of any third party; or (f) your use of or inability to use the Site,
software, content, information, materials, service, documentation, reports,
or data provided through the Site.
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Confidentiality and Proprietary Rights.
Providers Information.
- Confidentiality. All Providers Property (as
defined in subsection (ii), below) posted on or used by Providers in the
operation of the restricted areas of Site is confidential to Providers.
Except as expressly provided in these Terms of Use, you shall not use or
disclose any such restricted Providers Property except to the extent
necessary to facilitate your use of the Site in accordance with these Terms
of Use. You acknowledge that any actual or threatened violation of this
Confidentiality provision may cause irreparable, non-monetary injury to
Providers, the extent of which may be difficult to ascertain, and therefore
agree that Providers shall be entitled to injunctive relief in addition to
all other remedies available at law and/or in equity.
- Ownership. For the avoidance of doubt, the terms "Providers"
and/or "Providers Property" as used in this subsection apply only to GE
Commercial Distribution Finance Corporation and GE Commercial Distribution
Finance Canada. Providers (or their licensors, as applicable) retain all
rights, title and interest, including, without limitation, all rights of
copyright, patent, trademark, trade secret, and any other equivalent rights
under applicable law, and all registrations, applications, renewals,
extensions, continuations, divisions, reissues, or improvements thereof
relating to the foregoing rights (together, "Intellectual Property Rights"),
in and to all: (1) Copyrights - works of authorship, of any kind or medium,
including written, pictorial or graphic materials and computer software,
code, and other program materials ("Software"); (2) Patents -
inventions, discoveries, ideas, and know-how relating to any process,
business method, machine, manufacture or composition of matter; and (3)
Trademarks - registered and unregistered trademarks, trade names, service
marks, and logos (including, without limitation, the GE Monogram)
(collectively, "Property"), posted, disclosed or otherwise made
available by Providers on the Site, content, information, materials,
documentation, reports, or data ("Providers Property"). Except as
expressly provided in these Terms of Use, Site visitors and Authorized Users
shall not, through use of the Site, by virtue of these Terms of Use or
otherwise, acquire any rights whatsoever in any Providers Property or any
Intellectual Property Rights of any other third party posted, disclosed or
otherwise made available by or through the Site.
- Limited License. Subject to Section 2 ("Registration"),
above, and your compliance with these Terms of Use, Providers grant you a
non-exclusive, non-transferable, terminable, limited license to access, use
and display the Site including, without limitation, the visible text,
graphics, and images thereon and to view, upload and download such text,
graphics, data, and images only in connection with facilitating the
use, review, and analysis of your distribution network's performance data
and/or the purchase and sale of inventory financed by the Providers, as the
case may be. You also agree to reproduce all copyright and other proprietary
notices on all such copies in the same manner and format that such copyright
and other proprietary notices are included on the original Providers
Property posted on the Site. This license will terminate immediately if you
fail to comply with these Terms of Use. Upon such termination, you must
destroy all originals and copies in your possession and so certify in
writing to the Providers within three (3) business days of termination and
cease any further use of this Site without the express written consent of
Providers.
- Restrictions. You may not: (1) modify, adapt,
translate or create derivative works based upon the Providers Property; (2)
reverse engineer, decompile, decrypt, disassemble or otherwise attempt to
discover the source code of any of the Site's Software, or reduce such
Software to a human readable form, or permit third parties to do so, or
print or copy the HTML or other computer programs that are viewable at the
Site; (3) resell, sublicense, publicly display, perform, distribute or
publish the Providers Property, or any copy, except that you may distribute
permitted copies as incidental to your business activities conducted on the
Site; (4) remove, obscure, or alter any copyright notice, trademark, or
other proprietary rights notices affixed to or contained within the Site and
the products and services offered therein; or (5) create any frames at any
other Web sites pertaining to or using any of the information provided
through the Site.
- User-Provided Information.
- No Right of Privacy or Confidentiality.
In order to ensure compliance with these Terms of Use and applicable law,
Providers have the ability and right to access all information and content
posted on the Site by any and all users. Consequently, no user should have
any expectation that such information or content is subject to any right or
privilege of privacy or confidentiality. Providers reserve the right at all
times to fully cooperate with any law enforcement authorities, or comply
with any court order or subpoena requesting or directing Providers to
disclose any information concerning a user or registered user of the Site.
BY ACCEPTING THESE TERMS OF USE YOU WAIVE AND HOLD HARMLESS PROVIDERS FROM
ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY PROVIDERS DURING OR AS A
RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE
OF INVESTIGATIONS BY EITHER PROVIDERS OR LAW ENFORCEMENT AUTHORITIES.
Furthermore, Providers reserve the right at all times to edit, refuse to
post, or to remove any information or materials, in whole or in part, that
in Providers' sole discretion are objectionable or in violation of these
Terms of Use
- Sharing User Information. Providers may
provide to any vendor, distributor, or other third party any Provider
obligor's financial, credit, or other information regarding such obligor
that Providers may at any time possess, whether such information was
supplied by Obligor to Providers or otherwise obtained by Providers.
- Limited License. Providers do not claim ownership of the
materials you may provide to Providers (including documents, feedback and
suggestions), or upload, input or submit to Providers. However, by uploading
files, inputting information or otherwise communicating on, to or through
the Site, you hereby grant to Providers a perpetual, worldwide, irrevocable,
non-exclusive, royalty-free, transferable (with right to grant sublicenses
through multiple sublicenses) license to use, copy, adapt, distribute,
display, reproduce, transmit, modify and edit such materials, in all media
now known or hereafter developed, on the Site and otherwise in accordance
with the procedures outlined on the Site (including our Privacy Notice).
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Relationship of the Parties. You acknowledge that by using the
Site, no confidential, fiduciary, contractually implied, or other
relationship is created between you and Providers other than the express
contractual relationship provided in the Terms of Use and any other
written agreement you may enter into with Providers.
- Third Party Sites. The Site may contain links and pointers to
other Internet sites or resources. Links to and from the Site and other
third party sites do not constitute an endorsement by Providers or any of
their respective affiliates of any third party resources or their contents.
Providers make no representation or warranty, and take no responsibility,
for the accuracy, content, or any other aspect of these sites and disclaim
any liability to you in connection with such sites. If you decide to visit
any linked site, you do so at your own risk and it is your responsibility to
take all protective measures to guard against viruses or other destructive
elements.
- Telecommunications Equipment and Charges. You are solely
responsible for any and all telephone and other communications charges and
equipment costs relating to your use of the Site. All transmissions by you
via the Site shall be at your sole risk and Providers shall not be
responsible for any communications line failure, equipment, or systems
failure or other occurrence.
- Compliance with Laws. You agree that you will comply with
all laws, rules and regulations issued by any government, or any authority,
department or agency thereof ("Laws") of the United States, Canada, or any other
jurisdiction, as the case may be, where you are using the Site that are
applicable to your use of the Site, including, without limitation, Laws
governing business practices, contract formation and interpretation,
competition, export controls, and data privacy and protection.
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Direct Debit. If you elect at any time, or have elected, to
use the Direct Debit option on the Site, the following additional terms
apply to your use of the Site in addition to the other terms set forth in
these Terms of Use:
In accordance with section 3, the Site will allow you to
access Providers' system via an Internet connection for the purposes of
allowing you to obtain certain information regarding the amount which you
owe to Providers and to pay Providers the amount you owe pursuant to your
financing or other agreements with Providers, which will include the amount
of principal and/or curtailment payments, interest, fees and charges you owe
to Providers.
Providers may initiate automatic/pre-authorized, or elective,
debit entries to your account to pay any amounts which are due and owing
under your financing or other agreements. You may be required to
complete a registration form (and, for Canadian users, this Form may include
a Payor's Pre-Authorized Debit Authorization for Business Purposes Agreement
("PAD Agreement")) for this purpose in a form provided by Providers
from time to time ("Form"). You must provide certain
information as required in the Form, including information regarding your
bank and the particular account at such bank (the "Bank Account")
through which Providers will initiate the debit entries that you authorize
pursuant to these Terms of Use. You will immediately advise and communicate
with and may be required to complete and deliver to Providers an updated
Form from time to time if any information regarding the Bank Account is
changed or is inaccurate. Providers will thereupon enter such new
information into the system. You will execute such agreements that
such bank requires so that Providers can initiate debit entries to the Bank
Account and to receive payments therefor.
There are two account options identified in subsections (i) and (ii) below:
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Automatic/Pre-Authorized Direct Debits. To enable Providers the
authority to automatically initiate direct or pre-authorized debit entries
to your Bank Account to pay any amounts which are due and owing under the
financing or other agreements, by an election in the Form or, for Canadian
users, by completion of the PAD Agreement as described below, you thereupon
irrevocably authorize Providers to initiate direct or pre-authorized
debit entries to the Bank Account such that any obligations under the
financing or other agreements are paid when due and owing and to take
possession of funds in the Bank Account in the amount of such obligations
for application to such obligations. For Canadian users only, you will
be required to complete a PAD Agreement. In addition to the terms and
conditions set out in these Terms of Use, the PAD Agreement contains further
terms and conditions applicable to the automatic/pre-authorized direct debit
feature.
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Elective Direct Debits. If you do not confer such authority
to Providers to initiate Automatic/Pre-Authorized Direct Debits in the Form
or, for Canadian users, the PAD Agreement, the system will allow you to
select the payments of principal and/or curtailment, interest, insurance,
fees and other charges which you elect to make to Providers. Upon
selecting the particular items you wish to pay, you will enter the required
authorization information to confirm the payments you wish to make.
Upon doing so, you there upon irrevocably authorize Providers to initiate
direct debit entries to the Bank Account in the amount you selected to pay
the obligations and to take possession of funds in the Bank Account for
application to such obligations.
No direct debit entry shall be initiated by Provider under these Terms of
Use except in conformity with the authorization you provide. You may
request to change or revoke an authorization from time to time by submitting
a new Form (or, for Canadian users, providing prior written notice to the
Providers), subject to the completion of any direct debits authorized prior
to Providers' receipt and processing of such Form or notice, which
processing shall be completed in a commercially reasonable time after
Providers' receipt of the new Form or notice. You will pay Providers
its customary charge for each direct debit rejected by your bank (such
payment repays Providers' estimated administrative costs; it does not waive
the default caused by the rejected direct debit).
Providers will not be liable for the act or omission of
any Automated Clearing House, financial institution, or any person who has
obtained unauthorized access to the Site. You acknowledge that errors
may occur in the direct debiting process, and you will immediately notify
Providers if the amount of any direct debit entry that Providers initiate
exceeds the amount you authorized. You agree, however, that Providers'
liability for any such error will be limited to a prompt credit by Providers
to your Account of the amount of the entry that exceeds the amount you
authorized.
From time to time, an affiliate of Providers may provide
financing to your customer for the purchase of an item of inventory financed
by Providers. When such a program is available, and provided you have not
opted out of such a program after having been given an opportunity to do so,
you agree that payment to Providers for such inventory may be effected
electronically through the auto-settlement process by which the Providers'
affiliate will pay Providers directly for such inventory. Such transactions
will be reflected automatically on your Account.
Locator Transfer Program. Solely in connection with
any financing of inventory to you as an obligor, the
Locator Transfer Program ("LTP") is designed to allow
obligors of participating manufacturers and distributors (a "Participating
Manufacturer") to locate inventory within the Site
that is held by other dealers of the Participating Manufacturers (for the
purposes of this section, inventory obtained from Participating
Manufacturers which is financed by Providers is hereafter defined as
"Inventory").A dealer who
is interested in purchasing a unit of Inventory located through
LTP (the "Buyer") may then directly contact the
identified dealer who may be interested in selling the Inventory (the
"Seller"). It may be possible to electronically
effect the transfer of the Inventory between dealers through the Site (for
purposes of this section, each an "Electronic Transfer.")
If Providers finance your
Inventory purchased from Participating Manufacturers, by accepting these
Terms of Use, you are automatically enrolled in LTP.
Since Participating Manufacturers can change from time to time, your
enrollment in LTP and the number of brands of
Inventory that are subject to LTP may change from time
to time without notice. You can determine whether or not you are part
of the program at any given time by attempting to access
LTP in the Site; if you can successfully access the LTP module, you are enrolled in YOU
MAY DECLINE PARTICIPATION IN LTP
BY COMPLETING THE OPT-OUT FORM POSTED ON THE SITE AND SENDING SUCH FORM
TO PROVIDERS IN ACCORDANCE WITH THE INSTRUCTIONS SET OUT IN THE OPT-OUT FORM.
HOWEVER, IF YOU OPT-OUT OF THE PROGRAM, A PARTICIPATING MANUFACTURER WILL
CONTINUE TO BE ABLE TO USE LTP TO LOCATE INVENTORY HELD BY YOU.
In addition to the disclosure set out
below, your geographic location, the model numbers of your Inventory,
your name, and your telephone number will all be made available by Providers
to all other participating dealers through the Site.
If Electronic Transfer is available for the inventory in question, once
contact is made between a Buyer and Seller, said
parties will exchange Providers' dealer numbers for the purpose of
completing the transaction electronically.
Buyer assumes and agrees to pay to Providers the balance owing to Providers
from Seller for the Inventory.Buyer grants Providers a security
interest in the Inventory or, in the Province of Québec, until the Buyer
pays in full for the financing advanced in respect of the Inventory, title
to the Inventory shall remain with Providers, and further, Providers have
and will have a hypothec in the Inventory. In addition, Buyer
covenants and agrees with Providers that, in the Province of Québec, it will
obtain in favor of Providers from any third party claiming prior rights in
the Inventory a discharge of the prior rights or a cession of rank to insure
that Providers' hypothec in the said Inventory is, at all times, a first
ranking hypothec. Buyer and Seller agree that the balance owing to
Providers for the Inventory is as set forth in the Dealer Transfer
Transaction Form completed in connection with the transaction and Buyer and
Seller waive all defenses or claims they may have against Providers with
respect to such Inventory.
ISSUES SUCH AS LOGISTICS, DELIVERY
FEES, COMPENSATION (APART FROM THE INDEBTEDNESS SET OUT IN THE DEALER
TRANSFER TRANSACTION FORM DISCUSSED BELOW) AND ANY TAXES, ARE TO BE
DETERMINED BETWEEN THE BUYER AND THE SELLER WITHOUT THE INVOLVEMENT OF, OR
RECOURSE TO, PROVIDERS.
If Electronic Transfer is
available for the Inventory in question, the Buyer
and Seller may be required to electronically complete a dealer transfer
transaction form which will disclose the Seller's indebtedness to Providers
with respect to the particular piece of Inventory to be sold. If such a the
form is required and completed, Providers may directly, or through the
appropriate Participating Manufacturer (at Providers' sole discretion and
without recourse to Providers or any Participating Manufacturer), either
accept or reject the proposed transaction. If the
proposed transaction is accepted, you authorize Providers to complete the
transaction electronically. In other instances, a Participating
Manufacturer may require its approval before an Electronic Transfer of
Inventory may occur between Buyer and Seller
Service Levels. Providers do not guarantee the Site will be
operable at all times or during any down time (i) caused by outages to any
public Internet backbones, networks, or servers, (ii) caused by any failures
of your equipment, systems, or local access services, (iii) for previously
scheduled maintenance, or (iv) relating to events beyond Providers' (or
their respective affiliates') control such as strikes, riots, insurrection,
fires, floods, explosions, war, attacks, governmental action, labor
conditions, earthquake, natural disasters, or interruptions in Internet
services to an area where Providers (or their respective affiliates) or your
services are located or co-located.
Governing Law and Jurisdiction. These Terms of Use and the
Privacy Notice for the
Site, and any and all disputes arising out of these Terms of Use or your use
of the Site, shall be governed by the internal laws of the State of Illinois
for Authorized Users located in the United States and the internal laws of
the Province of Ontario for Authorized Users located in Canada, without
regard to the respective jurisdiction's principles of conflicts of law. You
hereby consent to the exclusive jurisdiction of and venue of the following:
(i) for Authorized Users located in the United States, in the Circuit Court
of Cook County Illinois and the United States District Court for the
Northern District of Illinois, or (ii) for Authorized Users located in
Canada, the courts of the Province of Ontario, in each instance as the case
may be, for the adjudication of any such disputes, and will not assert as a
defense lack of personal jurisdiction or inconvenient forum. Further, you
hereby irrevocably waive, to the fullest extent permitted by law, any and
all rights to trial by jury in any legal proceeding arising out of or
relating to these Terms of Use or the transactions contemplated through the
use of the Site.
For International Users Only. Access to the Site is intended only
for Authorized Users located within the United States and Canada. PROVIDERS
MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND THAT USE OF THE SITE OUTSIDE
OF THE UNITED STATES OR CANADA IS LAWFUL OR PERMISSIBLE. Those who access
the Site from other jurisdictions are responsible for their compliance with
local laws, as further provided in Section 20 ("Compliance with Laws").
For U.S. Users Only -- UCITA Disclaimer. You agree with us that
the Uniform Computer Information Transaction Act or any version thereof,
adopted by any state, in any form ("UCITA"), shall not apply to these
Terms of Use. To the extent that UCITA is applicable, the parties agree to
opt out of the applicability of UCITA pursuant to the opt-out provision(s)
contained therein.
General Provisions. These Terms of Use constitute the entire
agreement between you and Providers. Providers shall be excused from
performance hereunder to the extent that performance is prevented, delayed,
or obstructed by causes beyond their respective reasonable control. We may
assign our rights and obligations under these Terms of Use but you may not.
Any cause of action you may have with respect to your use of the Site, the
services, or that relates to these Terms of Use must be commenced within one
(1) year after the claim or cause of action arises. Any waiver of any rights
of either party must be in writing, signed by the waiving party, and any
such waiver shall not operate as a waiver of any future breach of these
Terms of Use. The language in these Terms of Use shall be interpreted as to
its fair meaning and not strictly for or against either party. If for any
reason a court of competent jurisdiction finds any provision of these Terms
of Use or portion thereof to be unenforceable, that provision shall be
enforced to the maximum extent permissible so as to affect the intent of
these Terms of Use, and the remainder of these Terms of Use shall continue
in full force and effect. The following sections of these Terms of Use will
survive any termination of these Terms of Use: 13, 14, 15, 16, 24, 25, 26,
27, and 28.
Language. You hereby state your express wish that these Terms of Use
as well as any documentation contemplated by this Site or pertaining to this
Site be in the English language. Vous exprimez votre
désir explicite que les présentes conditions d'utilisations, de même que
tous documents se rapportant aux présentes ou y ayant trait, seront en
anglais.
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