TERMS OF USE

Last Updated: October 10, 2012

Welcome to the Customer Online Management System ("COMS") and all of its component parts, including, without limitation, Analytics Online (collectively, the "Site"). Wells Fargo Commercial Distribution Finance LLC including its affiliates (collectively, "Providers") provide the Site to you subject to these Terms of Use..

1.    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 authorised 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 supersede 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, these Terms of Use apply and govern. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SITE.

 

2.    Registration. In order to use the Site, you may be required to complete an initial registration form and become an "Authorised 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 Authorised Users agree to promptly update their User Information as necessary to ensure that such information at all times remains current, accurate, and complete.

 

3.    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 Authorised Users of the Site, (ii) creating Passwords for Authorised Users, (iii) monitoring the Site usage by Authorised Users, (iv) terminating Site access to Authorised 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 Authorised Users. Before designating an Authorised User, you agree to inform each such Authorised 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 unauthorised 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 Authorised 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. 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 Authorised Users accessing the Site who are subject to your control as employees or otherwise. You will also immediately notify Providers in writing if you become aware of any unauthorised 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. Such notice shall not release you from responsibility for such loss, theft, security breach, unauthorised 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. Providers shall be entitled but not obliged, in their sole and absolute discretion, to assess your Password and, if Providers determine that you are using a Password it considers insecure, may at their discretion require you to change the Password and/or terminate your access to the Site.

 

4.    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.

 

5.    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.

 

6.    Capacity to Contract. Use of the Site may result in the formation of contracts between residents of different jurisdictions. In order to use the Site, you must have the legal capacity to contract under the laws of the jurisdiction from which you are accessing the Site. Minors (i.e., individuals younger than the age specified by the applicable 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 authorisation to form binding contracts.

 

7.    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.

 

8.    Consent to Receipt of Electronic Communications. You agree and intend that these Terms of Use evidence and affirm your 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:

 

a.     you may elect to receive the Documents in hard copy 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;

 

b.    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 the imposition of charges to offset costs incurred by Providers in delivering written hard copy 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;

 

c.     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;

 

d.    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 hard 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;

 

e.    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

 

f.      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.

 

9.    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 Authorised User.

 

10.  User Conduct. You agree that you will not:

a.     Use the Site in any manner that could damage, disable, overburden, or impair the Site.

b.    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.

c.     Disrupt or interfere with any other person's use of the Site or affiliated or linked sites.

d.    Attempt to obtain unauthorised access to the Site or portions of the Site that are restricted from general access.

e.    Use or attempt to use another's account, service, or system without authorisation from Providers.

f.      Create or use a false identity on the Site.

g.    Post or otherwise disseminate on or through the Site harassing, defamatory, libelous, tortious, 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.

h.    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.

i.      Allow access to or use of the Site or any component thereof by or for the benefit of third parties who are not Authorised 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.

j.      Upload or transmit to Providers' computer systems any computer virus, worm, time bomb, or other harmful programming routine.

k.     Frame any of the content of the Site, nor incorporate into another Site or other service any intellectual property of Providers or their licensors.

 

11.  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 Authorised User's use of all or part of the Site upon their reasonable belief that such Authorised User is in breach of any provision of these Terms of Use. Authorised 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.

 

12.  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.

 

13.  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 (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.

 

14.  Release. If you have a dispute with one or more Authorised 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.

 

15.  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.

 

16.  Confidentiality and Proprietary Rights.

a.     Providers Information.

                                      i.        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.

 

                                     ii.        Ownership. For the avoidance of doubt, the terms "Providers" and/or "Providers Property" as used in this subsection apply only to Wells Fargo Commercial Distribution Finance LLC and Wells Fargo 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 Wells Fargo 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 Authorised 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.

 

                                    iii.        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.

 

                                    iv.        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; (5) create any frames at any other Web sites pertaining to or using any of the information provided through the Site; or (6) incorporate any of the information made available by the Site in any other database or compilation, unless expressly permitted in writing.

b.    User-Provided Information.

                                      i.        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

 

                                     ii.        Sharing User Information. Subject always to the provision of the Privacy Notice, 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.

 

                                    iii.        Cookie Policy: This Site uses cookies. The Providers have updated their cookie policy to explain what cookies are and how the Providers use them on the Site, as well as to tell you how to disable or manage cookies. The use of cookies and your consent thereto is set out in the Cookie Policy.

 

                                    iv.        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).

 

17.  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.

 

18.  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.

 

19.  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.

 

20.  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 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.

 

21.  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: a. 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. b. Providers may initiate automatic/pre-authorised, 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 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 authorise 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. c. There are two account options identified in subsections (i) and (ii) below: (i). Automatic/Pre-Authorised Direct Debits. To enable Providers the authority to automatically initiate direct or pre-authorised 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 as described below, you thereupon irrevocably authorise Providers to initiate direct or pre-authorised 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.. If you do not confer such authority to Providers to initiate Automatic/Pre-Authorised Direct Debits in the Form, 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 authorisation information to confirm the payments you wish to make. Upon doing so, you there upon irrevocably authorise 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 authorisation you provide. You may request to change or revoke an authorisation from time to time by submitting a new Form, subject to the completion of any direct debits authorised 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). d. Providers will not be liable for the act or omission of any Automated Clearing House, financial institution, or any person who has obtained unauthorised 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 authorised. 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 authorised. e. 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.

 

22.  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.

 

23.  Governing Law and Jurisdiction; Waiver of Jury. Except as otherwise set out in the Privacy Policy or the Cookie Policy, 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 Authorised Users located in the United States, without regard to such jurisdiction's principles of conflicts of law. You hereby consent to the exclusive jurisdiction of and venue of the United States District Court for the Northern District of Illinois 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.

 

24.  For International Users Only. Access to the Site is intended primarily for Authorised Users located within the United States. PROVIDERS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND THAT USE OF THE SITE OUTSIDE OF THE UNITED STATES 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").

 

 

25.  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, 23, 24, 25 and 26.

 

26.  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.