Terms of Use - eLEND Solutions Inc.

    Your use of the eLENDsolutions.com web site and the applications, services, information and other materials available on and through the web site (such applications, services, information, other materials, and the web site itself shall be referred to collectively as the "Site") is subject to the terms and conditions set forth herein, as well as any other notices, disclaimers, or restrictions posted on the Site (collectively, the "Terms of Use"). Each time you enter in a login ID and password on the Site or enter the Site through a third party service provider, (1) you represent that you have been authorized to use the Site by either (i) a Dealer Information Owner (“DIO”) employed by a dealership (a “Dealer”) that has entered into an access agreement with eLEND, Inc., or predecessor-in-interest (“eLEND”); (ii) a financial institution or other financing source that has entered into an agreement with eLEND (a “Financing Source”); (iii) eLEND; or (iv) a party that has an agreement with eLEND, in accordance with the terms of such agreement; (2) you represent that you are the user assigned to use the login ID and password that is accessing the Site and (3) you agree to be bound by the Terms of Use. The Site is designed to allow users, Dealers, and Financing Sources, to transmit information electronically to one another, which may include without limitation, credit application information, contract status information, prospect reports, dealer reserve status, retail and lease rates, residual value information, payoff quotes, financing contracts, credit bureau information and other information.

INTELLECTUAL PROPERTY

    You acknowledge and agree that, eLEND and/or its affiliates and/or its licensors shall own all worldwide right, title and interest in and to the Site and any applications, services, text, graphics, multimedia content, or other information, data, content or material available on or through the Site and pages within that domain, and all related

    Code provided through the Site, any modifications, updates, upgrades, copies, derivative works, augmentations or customizations of the foregoing (collectively, “Materials”), including all worldwide intellectual property rights to the same, including without limitation, all United States, Canadian and worldwide patents, patent applications, copyrights, trademarks, trade secrets, rights of publicity and privacy and other proprietary rights. All rights not expressly granted to you herein are expressly reserved to eLEND and its affiliates and licensors.

    Material from the Site may not be copied, reproduced, distributed or modified, except that you may print and provide credit applications, financing contracts, disclosures, and other materials as expressly provided on the Site for use with Financing Sources, Dealers and consumers. Modification of the Materials or use of the Materials for any purpose other than that expressly permitted herein or otherwise on the Site is a violation of copyright and other proprietary rights and the use of any such Material on any other web site or computer environment is strictly prohibited.

    You may submit feedback, suggestions or comments (“Feedback”) that will universally enhance the Site. eLEND may, in its sole discretion, decide to incorporate some or all of this Feedback into the Site. Notwithstanding anything to the contrary herein, to the extent any portion of the Site, or any versions thereof or enhancements thereto are not deemed owned by eLEND, you hereby assign all of your right, title and interest in the Site or any such Feedback or enhancements to eLEND. You will execute such documents as may be deemed reasonably necessary to accomplish the objectives of this Section. You grant eLEND a worldwide, perpetual, nonexclusive, sublicensable, royalty-free license to use, reproduce, distribute, transmit, disclose, display, modify and create derivative works of any content, data, information or other materials you submit to or through the Site; provided, that, eLEND shall do so in accordance with applicable law and/or the applicable agreement between the party that authorized you to use the Site and eLEND, if applicable.

TRADEMARKS

"eLEND", logos as well as other related marks which may appear on the Site (“Marks”), are the service marks and trademarks of eLEND. All other trademarks, service marks and logos used on this Site, with or without attribution, are the trademarks, service marks or logos of their respective owners.

THIRD PARTY CONTENT; THIRD PARTY SITES

eLEND is a distributor and not a publisher of information supplied to the Site by you, other users or third parties. Any credit information, opinions, advice, statements, services, contracts, offers, or other information that is part of the Materials on this Site that is expressed or made available by third parties, including Financing Sources, credit bureau reporting agencies and/or Dealers or any other user of the Site, are those of the respective authors or distributors and not of eLEND. eLEND ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS OR APPROVALS WITH REGARD TO SUCH THIRD PARTY INFORMATION. It is your responsibility to evaluate and confirm the information, opinions, advice or other Material available through the Site, whether posted or provided by third parties or by eLEND.

    The Site may contain hyperlinks to other web sites that are not operated by eLEND. eLEND does not control these web sites and is not responsible for their contents, nor should the existence of such links be construed as an endorsement of the material appearing on such sites or as implying an association between eLEND and their operators. Such hyperlinks are provided for your reference only.

USER REPRESENTATIONS, WARRANTIES AND COVENANTS

1. You represent, warrant and covenant to eLEND that:
   
   
   1. You will comply at all times with all applicable federal, state, provincial and local laws, rules and regulations in your use of the Site and/or your use or disclosure of any data, information or materials you submit to or receive through the Site;
      
   2. You will not use the Site for any purpose which is improper, unlawful, abusive, harassing, libelous, defamatory, obscene or threatening, or which violates the Terms of Use;
      You will not use the Site to obtain the pay-off amount on any financial institution’s customer’s lease, loan or balloon account unless you have first received an express authorization from such customer to do so;
      
   3. You will not, nor will you permit any other person, corporation or entity, without the prior written consent of eLEND to: (i) copy, duplicate or grant permission to the Site or any part thereof; (ii) create, attempt to create, or grant permission to the source program and/or object program or code associated with any software component of the Site; (iii) assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Site or directly or indirectly permit any third party to use the Site; (iv) decompile, disassemble or reverse engineer any software component of the Site or any report or document generated therefrom; (v) modify, alter or delete any of the copyright notices embedded in or affixed to the copies of any components of the Site; (vi) export any application provided hereunder or any portion of the Site, or access the Site from outside the United States or Canada; or (vii) use eLEND’s name, URL, trademarks, server, or other materials in connection with, or to transmit, any unsolicited communications or "spam." For the purposes of this agreement, "spam" has the meaning generally understood among Internet users;
      
   4. Any transmission of data from your computer equipment or system will be free from (i) intentionally injurious instructions (e.g. “viruses”) that are designed to modify, damage, delete or disable the Site or any applications thereon; (ii) any hidden passwords that permit unauthorized access to the data or the Site, or (iii) any embedded code that could trigger, shut down or disable the Site;
      
   5. You have obtained all necessary licenses, releases and consents to grant the rights set forth herein;
      
   6. You shall have all regulatory approvals, authorizations, licenses, permits, and other permissions, consents and authorities whatsoever needed to use the Site and perform your obligations hereunder; and
      
   7. You will comply with the security measures set forth below under the heading “SECURITY”.
      
2. If you are using the Site as an authorized user of a Dealer, you further represent, warrant and covenant to eLEND that:
   
   1. Except for the credit applications, contracts and disclosures, vehicle payoff information, credit bureau reports and notices relating thereto that are specifically designated by eLEND as available to consumers, you will not show or display to any unauthorized person (including any customer), in printed form or in any other manner, any information on or related to the Site;
      
   2. You will advise each credit applicant of the name and address of the financial institution(s) to whom the applicant’s credit application will be submitted prior to actual submission of their credit application through the Site; and
      
   3. As required by applicable law, you will either (i) read verbatim or (ii) provide a printed copy of all credit application disclosures and/or notices set forth on the Site to each applicant and obtain each applicant’s consent to the terms in such disclosures and/or notices prior to submission of their application to any financial institution(s).

NO WARRANTIES

    You acknowledge that there are certain security, corruption, transmission error and access availability risks with using open networks such as the Internet and you expressly assume such risks. Because user authentication on the Internet is difficult, eLEND cannot and does not confirm any user’s purported identity.

    THE SITE AND ANY APPLICATIONS, SERVICES, MATERIALS OR INFORMATION CONTAINED WITHIN THE SITE IS PROVIDED ON AN "AS IS" AND “AS AVAILABLE BASIS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, eLEND DISCLAIMS ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT AND ANY WARRANTIES ARISING FROM THE COURSE OF DEALING OR PERFORMANCE. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SITE AND ANY SITE-RELATED SERVICES OR INFORMATION OR MATERIALS.

    IN ADDITION, eLEND DOES NOT WARRANT THAT THE FUNCTIONS ON THE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN OR ON THE SITE WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. eLEND DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE SITE OR RESULTS OF THE USE OF THE SITE, SPECIFIC SERVICES OR APPLICATIONS PROVIDED THROUGH THE SITE, OR ANY MATERIALS OR INFORMATION ON THE SITE, IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT eLEND) ASSUME THE ENTIRE RISK OF ANY RELIANCE ON THESE MATERIALS. Under no circumstances will eLEND be liable in any way for any MATERIALS, including, but not limited to, for any errors or omissions in any MATERIALS or information, or for any loss or damage of any kind incurred as a result of the use of any MATERIALS, information OR RESULTS posted, emailed or otherwise RECEIVED OR transmitted via the Site.

LIMITATION OF LIABILITY

    UNDER NO CIRCUMSTANCES SHALL eLEND, ITS AFFILIATES OR ITS SUBSIDIARIES, OR THE RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SPONSORS, AND OTHER PARTNERS OF EACH BE RESPONSIBLE OR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, THE SERVICES AVAILABLE ON THE SITE, INFORMATION CONTAINED WITHIN THE SITE, OR RELIANCE ON ANY INFORMATION, MATERIALS OR RESULTS PROVIDED TO OR RECEIVED THROUGH THE SITE, EVEN IF eLEND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. eLEND’S LIABILITY, IF ANY, RESULTING FROM YOUR USE OF THE SITE IS GOVERNED BY THE APPLICABLE AGREEMENT BETWEEN THE PARTY THAT AUTHORIZED YOU TO USE THE SITE AND eLEND, IF ANY. ANY LIABILITY THAT eLEND MAY HAVE PURSUANT TO SUCH AGREEMENT WOULD BE TO THE PARTY THAT AUTHORIZED YOU TO USE THE SITE AND NOT YOU PERSONALLY. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SITE AND/OR SITE-RELATED SERVICES, APPLICATIONS, MATERIALS OR INFORMATION IS TO STOP USING THE SITE AND/OR THOSE SERVICES, APPLICATIONS, MATERIALS OR INFORMATION.

INDEMNITY

    You agree to indemnify, defend and hold eLEND and its subsidiaries, affiliates, and the respective officers, directors, agents, partners, sponsors, employees and independent contractors of each harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of content, data, materials or information you submit, post to or transmit to or through the Site, your use of the Site or reliance upon any Materials provided through the Site, your connection to the Site, your violation of the Terms of Use, your use or disclosure of any content, data, materials or information received through the Site, your negligence, omissions or misconduct, your violation of any rights of another party, or your participation in or conducting of any transaction (or failure to conduct or complete a transaction) through the Site. This provision shall survive the expiration or termination of the Terms of Use and the applicable access agreement, lender agreement or other agreement between the party that authorized you to use the Site and eLEND, if any.

CONFIDENTIAL INFORMATION

“Confidential Information” shall mean the nonpublic and/or proprietary information revealed by eLEND, including without limitation all forms and types of financial, business, scientific, technical, economic or engineering information of eLEND, and including without limitation, the applications provided through the Site. You agree to keep all Confidential Information acquired from eLEND, whether in connection with your use of the Site or otherwise, confidential. You shall not use the Confidential Information except as expressly provided herein, and you shall not disclose the Confidential Information without express written permission from eLEND. All Confidential Information shall remain the property of eLEND and shall not in any manner be deemed licensed or transferred to you. You shall return or destroy all Confidential Information on eLEND’s request, upon the termination of the Terms of Use, upon termination of your rights to use the Site, or upon termination of the access agreement or lender agreement under which you are authorized to use the Site.

    You shall comply with all privacy and data protection laws, rules and regulations which are or which may in the future be applicable to your use of the Site or any applications, data or information provided on or through the Site. Without limiting the generality of the foregoing sentence, you agree that you will not use or disclose to any other party any nonpublic personal information which you receive in connection with the Terms of Use or through the Site, except as expressly permitted in the Terms of Use or by applicable law.

    You acknowledge and agree that: (a) irreparable injury will result to eLEND in the event of a breach by you of this obligation of confidentiality, (b) eLEND’s remedy at law for such breach is inadequate and (c) eLEND, in addition to any money damages for any such breach, shall be entitled to temporary and permanent injunctive relief without the necessity of proving damages, and that eLEND shall not be required to post bond as a condition of such relief. This provision shall survive the expiration or termination of the Terms of Use and the applicable access agreement or lender agreement.

ADDITIONAL TERMS APPLICABLE TO USE OF CREDIT BUREAU SERVICES

The following terms shall apply to your use of the credit bureau service, if any:

1. You represent, warrant and covenant that:
   
   
   1. You will not use the credit bureau application for any purpose that is improper or that violates the Terms of Use or any applicable federal, state or local law, rule or regulation;
      
   2. You will comply with all applicable federal, state and local laws relating to your acquisition and use of credit information and other and other personally identifiable financial information, including, without limitation, the Fair Credit Reporting Act as amended by the Consumer Credit Reporting Reform Act of 1996, 15 U.S.C § 1681 (“FCRA”), and Title V of the Gramm-Leach-Bliley Act, 15 U.S.C. §§ 6801 - 6810 and its implementing regulations wherever promulgated;
      
   3. With respect to California consumers, you shall comply with all applicable provisions of the California Consumer Credit Reporting Agencies Act, Cal. Civ Code §§ 1785.1 et seq., as amended, and hereby certify that (i) you are using the credit bureau application in connection with your employment by a “retail seller” as that term is define in Cal. Civ. Code § 1802.3 that issues credit to consumers who appear in person on the basis of applications submitted in person, (ii) prior to requesting a consumer report through the Site, you have inspected the applicant's photo identification; (iii) you will only use the appropriate code number designated by the applicable credit reporting agency for accessing consumer reports for California consumers, (iv) if the address on the consumer credit report does not match the address on the application, you will take reasonable steps to verify the accuracy of the consumer's address, and either communicate with the consumer by telephone or in writing to confirm that the credit transaction is not the result of identity theft; and (v) if you receive a consumer credit report with a clearly identifiable notification, consisting of more than a tradeline, that information in the report has been blocked as the result of identity theft, you will not extend credit without taking reasonable steps to verify the consumer's identity and to confirm that the credit transaction is not the result of identity theft. This clause does not limit or otherwise restrict your duty to comply with clause (b) above;
      
   4. With respect to Vermont consumers, you agree to comply with 9 Vermont Stat. Ann. §§ 2480e and 2480g, and expressly agree to obtain the consumer's consent before requesting a consumer report through the Site to the extent and in the manner required by Vermont law. This clause does not limit or otherwise restrict your duty to comply with clause (b) above; and
      
   5. You will make inquiries and use any consumer reports you receive only for the following purpose and no other purpose:
      In connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of the consumer.

      (THE FCRA PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CONSUMER REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, OR IMPRISONED NOT MORE THAN TWO YEARS, OR BOTH.)

   6. You shall use each consumer report only for a one-time use and will hold in strict confidence each consumer report you receive and not distribute a copy to any other party, except as required or permitted by any law or other lawful order.

SECURITY

    It is a violation of the Terms of Use to log onto the Site with a login ID and password that was not assigned to you personally. You agree to keep your login ID confidential and to notify eLEND if you suspect that anyone other than yourself has accessed the Site with your login ID and password.

    You agree not to use any functions on the Site which you are not authorized to use. Without limiting the generality of the foregoing, you agree not to use the Site to obtain credit bureau reports in any manner that would violate applicable federal, state or local laws. You agree to access and/or enter information on the Site with respect to the entity by which you are employed only, and not to access any other entity’s information.

MODIFICATION OR TERMINATION OF THE SITE

    eLEND reserves the right to withdraw, suspend or discontinue at any time and from time to time the Terms of Use, any Materials available on the Site and any functionality or features in or on the Site, including the cessation of all activities associated with the Site, with or without notice. eLEND reserves the right to change or modify the Terms of Use at any time. Any change or modification made by eLEND will be effective immediately upon posting on the Site and your continued use of the Site means that you have agreed to accept any changes or modifications made by eLEND. eLEND recommends that you revisit this web page from time to time. Not all Materials are available in all geographic areas. eLEND may, from time to time, introduce new Materials to the Site or modify or delete existing Materials. By using new Materials, such as new services, you agree to be bound by the rules concerning these Materials.

LIMITED DISTRIBUTION AND TERRITORIAL CONSIDERATIONS

    This Site is controlled and operated by eLEND from its offices within the State of Cailfornia, U.S.A. eLEND makes no representation that materials in the Site are appropriate or available for use in other locations. Those who choose to access this Site from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Use of or access to the Site shall not be construed as the purposeful availment of the benefits or privilege of doing business in any state other than the State of California by eLEND.

GOVERNING LAW AND JURISDICTION

1. The Terms of Use shall be governed by, construed and enforced in accordance with the laws of the State of California, as it is applied to agreements entered into and to be performed entirely within California and without giving effect to any principles of conflicts of laws. You agree that any legal lawsuit or other action brought by eLEND, you or any third party to enforce this agreement, or in connection with any matters related to this Site, shall be subject only to the jurisdiction of either the state or federal courts located in Orange County, California.