TERMS OF USE

Last Updated: June 15, 2014

Conditions d'utilisation Français


Welcome to the Customer Online Management System ("COMS") and all of its component parts, including, without limitation, Analytics Online, COMS power analytics, and forecasting tools (collectively, the "Site"). GE Commercial Distribution Finance LLC 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, NMHG Financial Services, Inc. and GE Servicios Financieros, S.A. de C.V., Sociedad Financiera de Objeto Múltiple, Entidad No Regulada.

  1. Acceptance of Terms of Use. 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 for the Site. These Terms of Use 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, use, or any subject matter relating to the Site, except as set forth in Section 27(e) below, these Terms of Use will apply and be controlling. 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 will 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.

  3. Passwords and Security. Use of the Site will 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. 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. 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. 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. 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, they 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 first 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 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 and authorization 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 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 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:

    1. 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 the 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;

    2. 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;

    3. 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;

    4. 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;

    5. 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

    6. 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. Consent to Third Party Payments. You agree that payment of any amounts you owe pursuant to your financing or other agreements with Providers may be accepted by Providers from third party financial institutions and/or banks on your behalf without any additional consent from you. Such payments may be applied by Providers in the manner described by such third party financial institutions and/or banks or otherwise as set forth in your financing or other agreements with Providers.You agree to waive any claims against Providers for application of payments in accordance with directions from third party financial institutions and/or banks. Acceptance of any payments from third parties shall be at Providers' sole discretion and subject at all times to Providers' policies and procedures for acceptable forms of payment. Notwithstanding the authorizations contained herein, you agree that the obligation to pay any amounts owed to Providers shall remain your obligation and not that of any third parties making payment on your behalf.

  10. Information Accuracy. You warrant that you will only submit and/or post information on the Site that is accurate, complete, and not misleading. 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.

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

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

    2. 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;

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

    4. Attempt to obtain unauthorized access to the Site or portions of the Site that are restricted from general access;

    5. Use or attempt to use another's account, service, or system without prior written authorization from Providers;

    6. Create or use a false identity on the Site;

    7. 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;

    8. 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;

    9. 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 or sharing, downloading, or copying any content or information from the Site, without Providers' prior written consent, or for any unlawful purpose or in furtherance of any unlawful purpose;

    10. Upload or transmit to Providers' computer systems any computer virus, worm, time bomb, or other harmful programming routine, or assist anyone else in doing so, directly or indirectly; and

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

  12. 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.

  13. 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 and for any reason.

  14. General Disclaimer of Warranties; Limitations of Liability.

    1. THIS SITE, THE SOFTWARE, CONTENT, INFORMATION, MATERIALS, SERVICE, DOCUMENTATION, REPORTS, TOOLS, 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, TOOLS, 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, EXPRESS OR 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, COURSE OF CONDUCT, OR TRADE USAGE WITH RESPECT TO THE OPERATION OF THIS SITE, SOFTWARE, CONTENT, INFORMATION, MATERIALS, SERVICE, DOCUMENTATION, REPORTS, TOOLS, OR DATA INCLUDED ON OR OFFERED BY THIS SITE OR PROVIDED THROUGH THE USE OF THIS SITE OR OTHER MEANS.

      PROVIDERS AND THEIR RESPECTIVE AFFILIATES DO NOT REPRESENT OR WARRANT THAT: THIS SITE AND/OR ANY SOFTWARE, CONTENT, INFORMATION, MATERIALS, SERVICE, DOCUMENTATION, REPORTS, TOOLS, 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 DETECTED OR 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.

    2. 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 WITH COMMERCIAL RELATIONSHIP OR PROSPECTIVE BUSINESS RELATIONSHIP, BUSINESS INTERRUPTION, LOSS OF INFORMATION, INACCURATE DISCLOSURE OR FAILURE TO DISCLOSE, OR OTHERWISE, ARISING FROM THE USE OF OR INABILITY TO USE THIS SITE OR THE SOFTWARE, CONTENT, INFORMATION, MATERIALS, SERVICE, DOCUMENTATION, REPORTS, TOOLS, 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 LIABLE, OUR LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO U.S. $10,000 IN THE AGGREGATE FOR ANY AND ALL FOREGOING CLAIMS OR DAMAGES OF ANY KIND. FURTHER, IN CONNECTION WITH ANY FINANCING OF INVENTORY TO YOU AS OBLIGOR, THE FOREGOING LIMITATION OF LIABILITY EXTENDS NOT ONLY TO PROVIDERS BUT ALSO TO GENERAL ELECTRIC COMPANY, BRUNSWICK CORPORATION, POLARIS INDUSTRIES INC., NACCO MATERIALS HANDLING GROUP, INC. AND THEIR RESPECTIVE DIRECT AND INDIRECT SUBSIDIARIES.

    3. 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.

  15. Disclaimer of Warranties; Limitations of Liability for any and all Forecasting Tools.

    1. ALL GENERAL DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 14 ABOVE ARE INCORPORATED BY REFERENCE IN THIS SECTION 15 AS IF FULLY SET FORTH IN THIS SUBSECTION (a).

    2. IN ADDITION, YOU ACKNOWLEDGE AND AGREE THE FOLLOWING SHALL APPLY TO ANY AND ALL FORECASTING TOOLS (together, the "tools"), FORECASTS, RESULTS, OUTPUTS, OUTCOMES, INTERACTIVE VISUALS, AND DATA GENERATED FROM THE USE OF TOOLS:

      1. forecasts, results, outputs, outcomes, interactive visuals, and any and all data generated by, from, and through the tools are expressions of opinion, not statements of fact, which relate to future or contingent events, expectations, or probabilities which may or may not occur;

      2. there are no assurances that forecasts, results, outputs, and outcomes will actually be realized in whole or in part;

      3. even if the forecasts, results, outputs, and outcomes are substantially realized, there are no assurances that they will have the expected consequences to or effects on your business or operations;

      4. past results are not a guaranty of future forecasts, performance, results, outputs, or outcomes;

      5. the tools, forecasts, results, outputs, outcomes, interactive visuals, and any data generated from the use of the tools are based on certain assumptions, business rules (disclosed and undisclosed), statistical models, sources of internal and external inputs and variables, and analyses we have made in light of our experience and our perception of historical trends, current conditions, expected future developments, and other factors we believe are appropriate, but there is no guaranty any assumption, business rule, statistical model, source of internal and external input and variable, or analysis we have made is accurate, correct, complete, or suitable for your specific business and/or operational needs or use, any other purpose, or that any of them will accurately forecast future results, outputs, or outcomes;

      6. whether actual results, outputs, and outcomes will conform with forecasts generated by and from the tools are subject to a number of factors, risks, errors, inaccuracies, and uncertainties beyond our control, and you assume all risks resulting from the use of and reliance upon the forecasts, results, outputs, and outcomes arising from the use of the tools, interactive visuals, and any data generated from the use of the tools;

      7. the tools, forecasts, results, outputs, outcomes, interactive visuals, and any data generated from the use of the tools are intended to serve only as a data point for general comparisons and evaluations, but not as the sole or primary basis upon which any specific conduct, action, omission, or decision is recommended or undertaken;

      8. the tools, results, outputs, outcomes, interactive visuals, and any data generated from the use of the tools are not a substitute for the exercise of your own experience, expertise, judgment, and consulting with other resources available to you including your tax, legal, accountant, and other advisors or experts;

      9. you should make or have made your own independent inquiry and investigation into the forecasts, results, outputs, and outcomes, and based thereon have formed or will form an independent judgment concerning, the use, reliance on, and application of the tools, forecasts, results, outputs, outcomes, interactive visuals, and any data generated from the use of the tools on your business or operations;

      10. you agree that you have not relied on any statement, material, or advisements related to the use of the tools, forecasts, results, outputs, outcomes, interactive visuals, and any data generated from the use of the tools to make business or operational decisions or for any other purpose;

      11. any confidence levels in any particular forecast, result, output, or outcome, even if expressed as a specific numeric percentage (e.g., 75%) including any upper or lower forecast bounds, do not mean that any particular forecast, result, output, or outcome has that percentage of likelihood, and you should note by way of example if a confidence level is expressed as a specific numeric percentage (e.g., 75%), at least one out of four times the actual forecasts, results, outputs, or outcomes are expected to be outside the upper and lower forecast bounds;

      12. Many data analyses yield correlations that might or might not reflect causation. Some data analyses develop imperfect information, either because of limitations of the algorithms, or by the use of biased sampling;

      13. Real-world data can contain extreme events or outliers. Outliers may be real events that, by chance, are overrepresented in the data; or they may be the result of data-entry or data-transmission errors. In both cases they can skew the model and degrade performance;

      14. Customer profiles or tapestries (collectively, "Profiles") result from the aggregation of purchase patterns, activities on websites, mobile, social media, ad network interactions, demographic, and other diverse data sets and are enhanced with information from public records or other commercially available sources. These Profiles are algorithmically analyzed to segment customers into categories, often with illustrative names that help identify populations (e.g., Exurbanites, Suburban Splendor, Silver and Gold, etc.) Even when Profiles are statistically valid, there is uncertainty that discovered properties of groups apply to a particular individual in the group. It is important to note that the group properties may be untrue about a particular individual in the group;

      15. The tools, forecasts, results, outputs, outcomes, interactive visuals, and any and all data generated by, from, and through the tools are to be used solely for legitimate commercial purposes and any use contrary to law or in furtherance of any unlawful purpose including violating privacy rights, nondiscrimination laws, or any other applicable law or regulation is strictly prohibited. Any use other than for legitimate commercial purposes is subject to the termination rights under these Terms of Use as well as other penalties; and

      16. Providers are not in the business of supplying information for your guidance or for the guidance of any others in their business transactions or management of operations. Rather, any tool is provided as incidental to other business relationships that you have or may have with Providers.

  16. 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 all 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 Section1542, which states: "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."

  17. 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 the Terms of Use or the use of the Site, including but not limited to: (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, tools, 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, tools, or data provided through the Site.

  18. Confidentiality and Proprietary Rights.

    1. Providers Information.

      1. 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.

      2. 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 LLC 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, tools, or data (collectively, "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.

      3. 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.

      4. 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.

    2. User-Provided Information.

      1. 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.

      2. 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.

        For the avoidance of doubt, you expressly grant Providers the right to (i) repurpose and/or aggregate customer, vendor, or distributor data in Providers' possession whether collected by or through the Site or obtained by any other lawful means (collectively, "User Data"), (ii) track, analyze, and/or create reports related to aggregate activity and/or aggregate results obtained in connection with your use of the Site or related to User Data and share all such reports, data, and information with Providers' affiliates, customers, and third parties, and (iii) reproduce, use, prepare derivative works from, display, or distribute User Data to create, market, offer, or distribute products and services to Providers' affiliates, customers, and third parties, such as analytic reports; provided, however, any User Data used excludes your personal information. You acknowledge and agree Providers cannot guaranty that aggregated, non-personal information shared with affiliates, customers and third parties when combined and integrated with diverse data sets and subject to data mining and other kinds of analytics, whether existing now or in the future, may reveal new, non-obvious, unexpected uses of data and sometimes private and/or personal information either through inference, new insights, or re-identifying previously aggregated, anonymous information.

      3. 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).

  19. 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.

  20. 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.

  21. 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.

  22. 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, Mexico or any other jurisdiction, as the case may be, depending upon where you are using the Site and 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 and any International Treaties applicable to any of United States, Canada or Mexico.

  23. Direct Debit. THIS SECTION IS NOT APPLICABLE FOR AUTHORIZED USERS LOCATED IN MEXICO. 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:

    1. 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.

    2. 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.

    3. There are two account options identified in subsections (i) and (ii) below:

      1. 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.

      2. 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).

    4. 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.

    5. 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.

  24. 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 LTP. 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 as 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.

  25. 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.

  26. Governing Law. These Terms of Use for the Site, and any and all disputes, claims, controversies arising out of or relating to 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, the internal laws of the Province of Ontario for Authorized Users located in Canada and the federal laws of the United Mexican States for Authorized Users located in Mexico, without regard to the respective jurisdiction's principles of conflicts of law, except to the extent inconsistent with the provisions of the Federal Arbitration Act, which will control and govern all arbitration proceedings hereunder as set forth in Section 27.

  27. Binding Arbitration; Jurisdiction; Jury Trial Waiver; Class Action Waiver.

    1. Any and all disputes, claims, or controversies arising out of or relating to these Terms of Use or your use of the Site (collectively, the "Disputes") must be submitted and settled as set forth in this Section.

    2. For Authorized Users within the United States, any such Dispute will be submitted to the JAMS, Inc. office located closest to Chicago, Illinois, for binding arbitration in accordance with JAMS Streamlined Arbitration Rules & Procedures then in effect, as amended by this Section (except for any rule and procedure in conflict or inconsistent with the provisions of this Section). The Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended from time to time, shall govern all arbitration(s) and confirmation proceedings under this Section.

      For Authorized Users within the United States, the cost of the arbitration, including the fees and expenses of the arbitrator, will be shared equally by the parties, with each party paying its own attorneys' fees and costs. The arbitrator shall decide whether the parties have agreed to arbitrate, and whether this Binding Arbitration provision covers the particular Dispute between the parties. Notwithstanding the foregoing, “Disputes” does not include any dispute, claim, or controversy about the validity or enforceability of this Binding Arbitration provision or any part thereof (including, without limitation, the Class Action Waiver set forth below and/or this sentence); all such disputes, claims, or controversies are for a court and not an arbitrator to decide. However, any Dispute that concerns the validity or enforceability of these Terms of Use as a whole is for the arbitrator, not a court, to decide. In addition, the arbitrator will have the authority to apportion liability between the parties, but will not have the authority to award any damages or remedies not available under these Terms of Use or in excess of any limitation of liability set forth in these Terms of Use. The arbitration award will be presented to the parties in writing. All arbitration proceedings, including testimony or evidence at hearings, will be kept confidential. The Federal Arbitration Act will govern any post-award or order proceedings.

    3. In the event any Dispute is tried in a court because the Authorized User is from Canada or Mexico, any portion of this Binding Arbitration provision is found to be unenforceable or invalid, or for any action confirming, vacating, modifying, or correcting an arbitration award, 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 in Chicago, (ii) for Authorized Users located in Canada, the courts of the Province of Ontario, or (iii) for Authorized Users located in Mexico, the federal courts located in the Federal District of Mexico (Distrito Federal), 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. For Authorized Users within Mexico, you expressly waive any other jurisdiction to which you might have a right, including but not limited to, jurisdiction by reason of their present or future domiciles.

    4. Further, in the event any Dispute is tried in a court, 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 or services contemplated through the use of the Site.

    5. For the avoidance of doubt, if any party to these Terms of Use has entered into a separate Vendor Agreement or Inventory Finance Agreement, as the case may be, with another party to these Terms of Use, prior to, on, or after the acceptance of these Terms of Use by any Authorized User, where such agreement includes an arbitration provision that covers in whole or in part Disputes arising from or relating to these Terms of Use or your use of the Site, the parties agree any conflict or inconsistency between this Section and any such other arbitration provision in any previous or subsequent Vendor or Inventory Finance Agreement between the parties shall be governed and controlled by the Vendor or Inventory Finance Agreement, as the case may be.

    6. YOU AGREE THAT BY ENTERING INTO THESE TERMS OF USE, YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION AGAINST GE COMMERCIAL DISTRIBUTION FINANCE LLC, GE COMMERCIAL DISTRIBUTION FINANCE CANADA, GE SERVICIOS FINANCIEROS, S.A. de C.V., Sociedad Financiera de Objeto Múltiple, Entidad No Regulada, BRUNSWICK ACCEPTANCE COMPANY LLC, POLARIS ACCEPTANCE, AND NMHG FINANCIAL SERVICES, INC., IN A COURT OR IN ARBITRATION, AS APPLICABLE. YOU FURTHER AGREE YOU MAY ONLY BRING DISPUTES AGAINST ANY OTHER PARTY TO THESE TERMS OF USE IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

      Unless the parties to these Terms of Use agree otherwise, arbitration claims, as applicable, may not be joined or consolidated in the arbitration proceeding. In no event shall an arbitrator have authority to preside over any form of representative or class proceeding or to issue any relief that applies to any person or entity other than individually. If this subsection is found to be invalid or unenforceable in whole or in part, then the entirety of this Section 27 (except for this sentence) shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of this subsection.

  28. For International Users Only. Access to the Site is intended only for Authorized Users located within the United States, Canada and Mexico. PROVIDERS MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND THAT USE OF THE SITE OUTSIDE OF THE UNITED STATES, CANADA OR MEXICO 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 22 ("Compliance with Laws").

  29. 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.

  30. 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: 14, 15, 16, 17, 18, 26, 27, 28, 29, 30, and 31.

  31. 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. Usted manifiesta de manera expresa que es su deseo que estos Términos de Uso, así como cualquier documentación contemplada en este Sitio estén escritas y se rijan en idioma Inglés.