Curomax

DEALER PORTAL ACCESS AGREEMENT
			
DealerTrack Specialty Solutions, Inc. (“DealerTrack”) operates this Internet website (the “Portal”), which acts as an electronic interface enabling you (“you” or “your”) to search for and enter into asset based financing (loan and/or lease) alternatives for your customers in connection with the sale or lease of such assets (collectively the “Customers”). Financing is provided by various lenders or lessors (each a “Financier”), who may offer their respective financing or leasing services on the Portal. The Portal may also offer an electronic interface enabling you to search for and enter into additional finance related services for your customers, such as the sale of insurance or warranty products or other products or services made available on the Portal (each an “Additional Service”) from various companies (each a “Vendor”) who may offer their respective Additional Service to you via the Portal.

THIS RETAILER PORTAL ACCESS AGREEMENT IS A BINDING LEGAL AGREEMENT BETWEEN YOU AND DEALERTRACK. BY CLICKING “I AGREE” BELOW YOU ARE AGREEING THAT GOOD AND VALUABLE CONSIDERATION IS BEING EXCHANGED BY THE PARTIES, AND THAT YOU ARE BOUND BY THESE TERMS AND CONDITIONS AS OF THE DATE AND TIME YOU ENTER INTO THIS AGREEMENT (“EFFECTIVE DATE”). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MUST CLICK “I DO NOT AGREE” BELOW AND YOU WILL NOT BE ALLOWED TO USE THE PORTAL OR ANY SERVICES AVAILABLE VIA THE PORTAL.

1. REGISTRATION

1.1 This Agreement is conditional upon you having completed this on-line registration process and having been notified by DealerTrack in writing, via facsimile or by electronic mail (“e-mail”) that you are a registered user of the Portal. DealerTrack retains the right both to refuse your registration and to terminate this Agreement at its sole discretion.

1.2 You must provide accurate, truthful and complete contact information and other information about your business, as required on the retailer registration page of the Portal or such other registration application as DealerTrack may direct you to utilize. You must advise DealerTrack of any changes to such information as soon as is reasonably possible. The information required from you on the registration page may change from time to time at the sole discretion of DealerTrack. Upon such a modification and notice to you, you must provide the updated information to DealerTrack within a reasonable period of time.

1.3 After completing the registration process and upon acceptance by DealerTrack, you will be contacted by telephone or email by a DealerTrack representative and will be provided with a unique user ID and password to access the Portal (the "Key"). Thereafter, you can request an additional Key(s) as you may require for all your employees, agents or authorized representatives that you solely determine are required to access the Portal (“Authorized Users”)

1.4 You must maintain the Key(s) as secret and confidential information and must not, directly or indirectly, disclose the Key(s) to any person (other than Authorized Users, who have received the necessary training to operate the Portal, for use in the ordinary course of their employment), nor permit any other person to directly or indirectly access the Portal. You must immediately notify DealerTrack in the event of any unauthorized access to the Portal or unauthorized use of the Key(s) or any other breach of security that is known or becomes known to you. You will be liable for any use or misuse of its Key and access to the Portal by anyone using your Key(s).

1.5 To access the Financing (as defined below) of each Financier or Additional Services of each Vendor, you must be approved by the Financier or Vendor and DealerTrack must receive such approval from each Financier or Vendor prior to providing you with access to the services of such Financier or Vendor. You, at your sole option, can enter into agreements and/or approved business relationships with as many Financiers or Vendors as you deem necessary, but you must maintain at least one (1) active relationship in good standing with any one (1) Financier in order to be registered as a retailer for the purposes of this Agreement.

2. RESTRICTIONS ON ACCESS AND USE

2.1 You must refrain from sending unsolicited messages (e.g. spam) through the Portal, or posting or submitting information containing viruses, or any computer programs that result or may result in the damage, interference with or interception or expropriation of the Portal, its content, or any system, software, hardware, data or other information.

2.2 You may not collect nor use any Financier or Vendor or other retailer contact information or the contact information of any customer that is not yours, contained on or available through the Portal for any purposes other than as expressly permitted in this Agreement.

2.3 You will not use any robot, spider or other automatic device or manual process to monitor or copy the Portal's web pages or any content contained on or available through the Portal.

2.4 You may not copy, market, distribute, export, translate, reverse engineer, transmit, merge, modify, transfer, adapt, loan, rent, lease, assign, share, redistribute, host, hyper-link to, frame, store, or permit access to all or part of the Portal or its content by any person other than Authorized Users. DealerTrack retains the right, but is not obligated, to store and monitor any activity and content on any system operated by DealerTrack, including without limitation the Portal and its content, and the right to disclose such activity and content to third parties, including without limitation law enforcement officers.

2.5 You must adhere to all applicable local, state and federal laws in accessing and using the Portal, including but not limited to those laws and regulations regarding:

(i) court ordered publication bans; (ii) restrictions on publishing, printing, distributing, possessing, selling, advocating, promoting or exposing, obscene or threatening material, child pornography, or hate propaganda; (iii) restrictions on the use of trademarks or trade names, or any work which is protected by copyright, trade secret, patent or other intellectual property laws, including software; and (iv) restrictions on defamation, libel, harm to reputation, invasion of privacy, misuse or failure to protect personal information, violation of secrecy, confidentiality, unfair competition and other situations which could generate liability.

2.6 You and your Authorized Users must comply with all Portal access policies.

2.7 If you believe that your intellectual property rights have been infringed or otherwise violated by another retailer or other Portal user, you must provide DealerTrack the following information, pursuant to Section 512 of Title 17 of the United States Code:

2.7.1 an electronic or physical signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;

2.7.2 a description of the copyrighted work or works that you claim have been infringed,

2.7.3 a description of the allegedly infringing material, including its location on the Portal;

2.7.4 your address, telephone number, and e-mail address;

2.7.5 a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and

2.7.6 a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.

2.8 DealerTrack’s Copyright Agent for notice of claims of infringement on the Portal is: Seyfarth Shaw Attorneys LLP, 4200-55 East Monroe Street, Chicago, IL, 60603-5803.

2.9 DealerTrack assumes no liability or responsibility for any content or material of any kind that is submitted for or posted on any area of the Portal. DealerTrack is merely a publisher of any such content and is acting solely as an Internet Service Provider as such term is defined in the Digital Millennium Copyright Act.

3. OWNERSHIP

3.1 The Portal and its content may consist of software, graphic images, text, data or other materials, all of which are proprietary to DealerTrack and its licensors and which are protected by copyright, trademark and other intellectual property laws. You may not directly or indirectly use, reproduce or display any trademarks associated with the Portal or its content. DealerTrack does not convey to you any express or implied grant or license with respect to the Portal, its content or any copyrighted works, trademarks or any other intellectual property.

3.2 You must maintain the confidential nature of all Confidential Information during the term of this Agreement and at all times after the termination of this Agreement and may not use such Confidential Information for your benefit (except as necessary in connection with this Agreement), or for the benefit of any third party. You must exercise the same degree of care and protection with respect to the Confidential Information as used to maintain the confidentiality of your information that you deem confidential. You will use at least a reasonable degree of care and protection and will only disclose the Confidential Information to your employees on a need-to-know basis. “Confidential Information” includes, without limitation, the Portal, the Portal content and any other DealerTrack information regarded as confidential and proprietary by DealerTrack or its suppliers, regardless of whether such information is identified as confidential or proprietary in writing. Notwithstanding the above, nothing in this Agreement restricts your right to disclose or use any information that (i) was already known to you at the time of DealerTrack’s disclosure to you, as evidenced by written documents in your possession, (ii) was generally available to the public or becomes publicly known through no wrongful act by you, (iii) was received by you from a third party who had a legal right to provide it to you, or (iv) was developed by you independently of the Confidential Information you receive from DealerTrack. In the event you are required to disclose Confidential Information pursuant to a valid request from a court of competent jurisdiction, you must notify DealerTrack before providing any Confidential Information in order to enable DealerTrack to seek an appropriate protective order and cooperate with DealerTrack in seeking to obtain such an order. Any such disclosure must be limited to the specific information required and you must use reasonable efforts to obtain confidential treatment of any Confidential Information required to be disclosed.

4. PORTAL DISCLAIMERS & LIMITATIONS

4.1 The Portal is only a venue for:

4.1.1 Financiers to offer you financing (loan and lease) and services (collectively, the “Financing”), and for you to seek out Financing for your Customers; and

4.1.2 Vendors to offer Additional Services to you and for you to seek out Additional Services for your Customers.

4.2 DealerTrack has no control over the credit applications, Financing, Additional Services, or the responses, content, materials or information provided, received, accessed, processed, uploaded or downloaded on, through, to or from the Portal, and all such items are solely the responsibility of the Financiers and Vendors.

4.3 DealerTrack does not represent, warrant, guarantee, offer, assess, provide, evaluate, or otherwise take any responsibility or liability for credit applications, Financing, Additional Services, responses, content, materials or information provided, received, accessed, processed, uploaded or downloaded on, through, to or from the Portal or any other facilities, hardware or software owned or operated by DealerTrack, including warranties as to completeness, accuracy, timeliness, error-free operation, reliability, quality or legality.

4.4 You are not relying on DealerTrack with respect to access to or use of any credit applications, Financing, Additional Services, or any responses, content, materials or information provided, received, accessed, processed, uploaded or downloaded on, through, to or from the Portal, and any or all of these items or access may be modified or discontinued at any time.

4.5 DealerTrack is not a party to, nor is DealerTrack involved in, any transactions or financing arrangements entered into by you or any Customer and any Financier or any Vendor, and DealerTrack is not liable for any dispute that arises between you or any Customer, and any Financier or any Vendor; or between you and any Customer.

4.6 THE PORTAL AND ITS CONTENT, INCLUDING WITHOUT LIMITATION ANY SERVICES PROVIDED, OR ANY RESPONSES, MATERIALS OR INFORMATION PROVIDED, RECEIVED, ACCESSED, PROCESSED, UPLOADED OR DOWNLOADED ON, THROUGH, TO OR FROM THE PORTAL, AND ACCESS TO THE SAME, ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE INCLUDING ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. Without limiting the generality of the foregoing, DealerTrack makes no representation, warranty or condition that the Portal or its content will be available at any given time, that it will operate uninterrupted or error-free, that defects will be corrected or that you will be able to use the Portal correctly.

4.7 Notwithstanding anything else in this Agreement, DealerTrack does not warrant or represent that:

(i) Financiers or Vendors will approve or accept any Customer credit application; or (ii) Any transaction entered into as a result of the use of the Portal will be completed.

5. LIMITATION OF LIABILITY

5.1 IN NO EVENT SHALL DEALERTRACK, ITS SUPPLIERS, AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU, OR ANY CUSTOMER, FOR ANY PUNITIVE, EXEMPLARY, AGGRAVATED, ECONOMIC, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, FAILURE TO REALIZE EXPECTED SAVINGS, ANY DAMAGES WHATSOEVER RELATING TO YOUR USE OF THE PORTAL, LENDER FINANCING, VENDOR ADDITIONAL SERVICES OR ANY OTHER THIRD-PARTY PRODUCTS OR SERVICES, YOUR MATERIALS, OR INTERRUPTION, DELAYS, ERRORS OR OMISSIONS, PENALTIES IN ANY WAY TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, IF CAUSED BY NEGLIGENCE OR STRICT LIABILITY OF DEALERTRACK, EVEN IF DEALERTRACK HAS BEEN ADVISED AS TO THE POSSIBILITY OF THOSE DAMAGES.

5.2 IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF DEALERTRACK, ITS SUPPLIERS OR AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS, FOR ANY CLAIM WHATSOEVER, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED ONE HUNDRED DOLLARS ($100.00).

6. USE OF THE PORTAL

6.1 The processing of Customer applications and worksheets through the Portal are subject to such operating policies and procedures, as DealerTrack provides to you from time to time. In particular, but without limiting the general nature of this obligation:

6.1.1 You and your Authorized Users will ensure that the Customer application correctly identifies each Customer applying for Financing or Additional Services by obtaining and inspecting two (2) pieces of identification from the Customer such that you can verify correct given names, surnames and birth dates;

6.1.2 Notice of confirmation of the acceptance or decline of a Customer application will be transmitted electronically to you via the Portal from the Financier or, if applicable, from the Vendor to whom you had submitted such a Customer application. Such notice may contain reasonable terms and conditions as set by such Financier or Vendor in its discretion.

6.1.3 Once you receive notice of confirmation of the acceptance of a Customer credit application as provided in Section 6.1.2, you will:

6.1.3.1 Have the Financier’s financing or leasing agreement (the “Financing Agreement”) along with any other documentation required by the Financier (collectively, the “Financing Documentation”) accurately completed and duly executed by the Customer and forwarded to the Financier in a manner determined by the Financier; and

6.1.3.2 Have the Vendor’s documentation (collectively the “Additional Services Documentation”) accurately completed and duly executed by the Customer as required by the Vendor.

6.1.4 Upon receipt of the completed and executed Financing Agreement the Financier, after completing its audit and verification procedures, is expected to pay you the price agreed upon between you and Financier according to the terms of your agreement with such Financier. Such payment is expected to be made by the Financier directly to you, as determined by the Financier’s prescribed method, and DealerTrack is not responsible nor liable for any failure or error in payments made or to be made by Financiers, or the Financier’s failure to honour any terms and conditions of the Financing Documentation for any reason whatsoever.

6.1.5 Where applicable, payment for Additional Services by you to Vendor will be as determined between you and Vendor, and DealerTrack is not responsible nor liable for any failure or error in payments made to or from you, or any Vendor’s failure to honour any terms and conditions of the Additional Services Documentation for any reason whatsoever.

7. YOUR COSTS

You are responsible for your own computer hardware and software and connection to the Internet for access to the Portal. There is no charge for your access to the Portal in accordance with the terms of this Agreement.

8. REPRESENTATIONS & COVENANTS

You represent, warrant and covenant that: (i) Your registration on the Portal and the related information is true, accurate and complete in all material respects; (ii) You (including the person clicking “I Agree”) have the authority to enter into this Agreement; (iii) You are a bona fide retailer under the appropriate state and/or federal laws and regulations and hold all necessary licenses required to sell and/or lease assets to Customers; and (iv) to the best of your knowledge and belief, each Customer application, worksheet, Financing Documentation, or Additional Services Documentation as delivered to Financier or Vendor, and as governed under the terms of this Agreement: a) is true, accurate and complete in all material respects; b) where applicable, contains the genuine signature of the Customer; c) is enforceable against the Customer; d) has not been amended; and e) together are the only documents applicable to the transaction.

9. INDEMNITY

You are solely responsible for the access to, selection and use of the Portal and all items, statements or other content transmitted, posted, received or created using your Key(s), even if transmitted, posted, received or created by someone else. You agree to defend, indemnify and hold DealerTrack, its suppliers and affiliates, and their respective directors, officers, employees and agents, harmless from and against any and all damages, losses, claims, liabilities, costs and expenses (including legal fees and costs) awarded against or incurred by any of them in connection with: (i) your breach of any of your representations, warranties or covenants in this Agreement; (ii) your or your Authorized Users’ use, misuse or operation of the Portal; (iii) any use or misuse of the Key(s); or (iv) any Financing Agreement or any Additional Services Documentation.

10. SEVERABILITY

Any provision of this Agreement that is illegal, invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such illegality, invalidity or unenforceability and will be severed from the balance of this Agreement, without affecting the remaining provisions of this Agreement or affecting the legality, validity or enforceability of such provision in any other jurisdiction.

11. FORCE MAJEURE

DealerTrack has no obligation to perform under this Agreement to the extent and for the period that DealerTrack is prevented from doing so by any cause beyond its reasonable control, including the inability to use or the failure of any third party telecommunications carrier or other services.

12. TERMINATION

12.1 This Agreement commences on the Effective Date and may be terminated without cause by either party upon thirty (30) day’s prior written notice.

12.2 Without limiting any other rights or remedies available to DealerTrack under this Agreement, at law or in equity, this Agreement shall immediately terminate if any of the following occurs:

12.2.1 Bankruptcy or insolvency proceedings are taken by or against you or if a receiver, trustee or other similar person is appointed over your assets;

12.2.2 After receiving notice in writing from DealerTrack, you fail to immediately observe or perform any of your obligations under this Agreement;

12.2.3 You do not complete the registration process or are not accepted by DealerTrack, as required in Section 1.1; or

12.2.4 You do not maintain in place at least one (1) completed and submitted Customer Application for Financing.

13. ENTIRE AGREEMENT

This Agreement and DealerTrack's policies constitute the entire agreement between the parties with respect to the access to and use of the Portal, and supersede all prior written or oral negotiations, agreements, representations and other communications between the parties.

14. ASSIGNMENT OF AGREEMENT

You may not assign this Agreement without the prior written consent of DealerTrack. DealerTrack may assign this Agreement without your prior written consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

15. INDEPENDENT CONTRACTORS

The parties acknowledge that each is an independent contractor and neither is the agent, representative, partner, fiduciary or trustee of the other party and neither party has the authority to act as or represent itself as an agent of the other party.

16. GOVERNING LAW

16.1 This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware and the federal laws of the United States without regard to conflicts of laws principles. This Agreement and access to the Portal shall be deemed to have been performed and occurred in the State of Delaware and the courts of that state shall have jurisdiction to entertain any action arising under this Agreement. You hereby irrevocably submit to the non-exclusive jurisdiction and venue of the courts of the State of Delaware.

17. NOTICES

17.1 Any notice, demand or other communication (in this Section, a “notice”) required or permitted to be given or made under this Agreement must be in writing and will be sufficiently given, made and deemed received if:

17.1.1 Delivered by electronic mail (“e-mail”) to your current e-mail address reflected in your Portal registration or to DealerTrack at support@DealerTrack.com during normal business hours on a “Business Day”, meaning any day except Saturday, Sunday or a statutory holiday, and left with a receptionist or other responsible employee of the relevant party at the applicable address set forth below;

17.1.2 Sent by courier or prepaid registered mail to the address set forth below;

17.1.3 Sent by facsimile transmission confirmed during normal business hours on a Business Day.

17.2 DealerTrack’s address for purposes of providing notice is as follows:

DealerTrack Specialy Solutions, Inc.

1111 Marcus Ave., Suite M04
Lake Success, NY 11042

18. HEADINGS; INTERPRETATION

18.1 The division of this Agreement into Sections and the insertion of headings are for convenience or reference only and shall not affect the construction or interpretation of the Agreement. Unless the context otherwise requires, words using the singular include the plural and vice versa, and words importing gender includes all genders. When used in this Agreement, the word “including” (or includes) means “including (or includes) without limitation”. Any reference in this Agreement to a “person” will be deemed to include an individual, corporation, partnership, trust, unincorporated organization, government and the heirs, executors, administrators or other legal representation of an individual

19. SURVIVAL

19.1 Sections 1.2, 1.4, 2, 3, 4, 5, 7, 8, 9-11, and 13-21 shall survive the termination or expiry of this Agreement.

20. E-CONTRACT

You are agreeing to be bound by this Agreement by executing it in electronic form. Once you click “I Agree,” the Agreement transmitted to and maintained in DealerTrack’s computer storage and other records, shall constitute the unique and identifiable authoritative copy of this Agreement, and will not be modified for any reason. You should also print a copy of this Agreement before clicking “I Agree” and you represent that you have the software and hardware to allow you to do so. Please type the name and address of the party to be bound (referred to herein as “you” and “your”), and the name and title of the individual clicking “I Agree” below:

21. AMENDMENT AND WAIVER OF THIS AGREEMENT

21.1 DealerTrack reserves the right to modify these terms and conditions at any time by posting any such modifications on the Portal. Your access to and use of the Portal following the posting of any such modified terms and conditions constitutes your acceptance of such terms and conditions and you agree to be bound by all such modified terms and conditions.

21.2 In all cases other than those described in Section 21.1, this Agreement may not be modified unless agreed to in writing by both parties. Any consent by a party to, or waiver of a breach by the other, whether express or implied, shall not constitute a consent to or waiver of or excuse for any other different or subsequent breach unless such waiver or consent is in writing and signed by the party claimed to have waived or consented. Except as otherwise provided herein, no term or provision hereof shall be deemed waived and no breach excused. Please click on either “I Agree” or “I Do Not Agree” below with respect to this Agreement. By clicking “I Agree,” you affirmatively agree to be bound by the terms of this Agreement. If you do not click on “I Agree,” you are not permitted to utilize the Portal.

Click here to print the DEALER PORTAL ACCESS AGREEMENT

Yes, I agree with the Above Terms and Conditions and have the authority to legally bind the Dealer.
No, I do NOT Agree with the Above Terms and Conditions

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Curomax application Lenders we have a VALID Dealer Agreement with: (Must have a current VALID Dealer Agreement with the Lender) check applicable box(es)	Bank of America KeyBank Bank of the West MB Financial Medallion Merrick
Other Lenders we have a VALID Dealer Agreement with: (Must have a current VALID Dealer Agreement with the Lender) check applicable box(es)	USBank Citizens Bank M&T Bank Commerce Bank First Merit Bank Safeway Sun Trust Bank Fifth Third Bank BB&T Bank Bank North HSBC Harley Davidson Finance Wachovia
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