ONLINE PAYMENT AGREEMENT

 

Updated April 30, 2019

 

This Online Payment Agreement ("Agreement") governs Your use of the online payment service offered by OPENLANE, Inc. and applicable service providers (the "Service"), and sets forth the terms and conditions under which You may use the Service.  The terms "OPENLANE," "We," "Us," and "Our," refer to OPENLANE, Inc. and/or CarsArrive Network, Inc., as applicable. The terms "You" and "Your" refer to the party obligated under the applicable services agreement, or similar instrument (each a "Services Agreement") to render payments that will be collected and applied by OPENLANE.

 

BY CLICKING "I AGREE" TO THIS AGREEMENT AND/OR BY USING THE SERVICE, YOU AGREE TO AND ACCEPT THESE TERMS AND CONDITIONS, JUST AS IF YOU HAD MANUALLY SIGNED THIS AGREEMENT.  PLEASE NOTE THAT YOU WILL NOT BE ABLE TO ACCESS THE SERVICE UNTIL AN ONLINE PASSWORD IS ASSIGNED IN ACCORDANCE WITH SECTION 2 BELOW.

 

YOU ACKNOWLEDGE AND AGREE THAT THIS SERVICE IS PROVIDED FOR YOUR CONVENIENCE, AND THAT PAYMENT OF ANY AMOUNT OWED BY YOU UNDER A SERVICES AGREEMENT CONTINUES TO BE YOUR RESPONSIBILITY AND OBLIGATION AS STATED IN YOUR SERVICES AGREEMENT. OPENLANE RESERVES THE RIGHT TO TERMINATE THIS AGREEMENT AND YOUR ACCESS TO THE SERVICE, IN WHOLE OR IN PART, AT ANY TIME.

 

1. Requirements

 

To initiate payments through the Service, You must have an acceptable bank and/or credit card account and an online password assigned in accordance with Section 2.

 

2. Password

 

When You enroll in the Service, OPENLANE will assign You a temporary password.  The first time You access the Service, You will be prompted to create an online password that will allow You to initiate online payments through the Service.  This password can be changed by You, or by OPENLANE upon Your request.  We recommend that You change Your password regularly, and that You memorize this password and do not write it down.  You are responsible for all activities conducted under Your password.  We are entitled to act on instructions received under Your password.  You shall use Your best efforts to protect and prevent access to the Service through Your password by anyone other than yourself, including, but not limited to, keeping Your password and account data strictly confidential, and notifying Us immediately if You discover a use of Your password or unauthorized access to Your information by another party not under Your control or supervision.

 

 

 

3. Fees

 

OPENLANE charges no monthly or transaction fees for initiating payments through the Service.  However, We reserve the right to charge a fee together with any sales, use, value-added or transfer taxes applicable to such fee, in the future at Our discretion.  If We determine that use of the Service will be subject to a fee or if a then–current fee will be changed, We will update this Agreement, and provide one or more of the following types of notification to You: (i) send a notice to You at the mailing address shown in Our records, (ii) send You an electronic mail message containing such a notice, and/or (iii) post the updated fee schedule on the applicable website for the Service or such other website or mobile application as We may specify from time-to-time.  Your use of the Service following such notification will constitute Your acceptance of the updated fee schedule.  You may choose to decline the updated fee schedule by discontinuing Your use of the Service.  We reserve the option, in Our sole discretion, to waive, reduce or reverse charges or fees in individual situations.  Any fees for which You may be obligated under Your Services Agreement(s) will not be affected by this Agreement.

 

4. Changes to Other Terms

 

We reserve the right to change the terms and conditions of this Agreement.  When such changes are made, We will update this Agreement, and provide one or more of the following types of notification to You: (i) send a notice to You at the mailing address shown on Our records, (ii) send You an electronic mail message containing such a notice, and/or (iii) post online the updated date of this Agreement.  Your use of the Service following such notification will constitute Your acceptance of the updated Agreement.  You may choose to decline the updated Agreement by discontinuing Your use of the Service.

 

5. Electronic Debits and Credits

 

You authorize OPENLANE and any applicable service providers to initiate: (i) electronic debit entries to the bank and/or credit card account provided by You or owned by You in payment of amounts requested by You or amounts owed by You to OPENLANE for the applicable billing period; or (ii) electronic credit entries from OPENLANE to You.  You understand that this authorization will remain in effect until You cancel in writing.   You agree to  notify OPENLANE in writing of any changes in Your account information or termination of this authorization at least 15 days prior to the next billing date.  If the above noted payment date falls on a weekend or holiday, You understand that the payment may be executed on the next business day.  For ACH debits to Your checking/savings account, You understand that because these are electronic transactions, these funds may be withdrawn from Your account as soon as the transaction date(s).  In the case of an ACH transaction being rejected for Non-Sufficient Funds (NSF) You understand that OPENLANE may at its discretion attempt to process the charge again within 30 days, and You agree to an additional reasonable charge for each attempt returned NSF which will be initiated as a separate transaction from the authorized payment.  You acknowledge that the origination of ACH transactions to Your account must comply with the provisions of U.S. law.  You certify that You are an authorized user of this credit card/bank account and will not dispute the scheduled transactions with Your bank or credit card company; provided the transactions correspond to the terms set forth herein.  By acknowledging herein, You assume the risk of any faulty transmissions of funds by way of ACH, and agree that OPENLANE is neither liable for any interruption of business nor any damages, consequential or otherwise.  You also agree that ACH is the preferred method of payment and that any other form of payment (Wire/Check) may result in a delay of payment. 

 

6. Disclaimers

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, SERVICES, OR UNINTERRUPTED ACCESS. SPECIFICALLY, OPENLANE, ON BEHALF OF ITSELF AND THE OPENLANE ASSOCIATES (AS HEREAFTER DEFINED), DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES; AND, (ii) ANY WARRANTIES OF TITLE, OF NON-INFRINGEMENT, OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE, OR TRADE PRACTICE. IN ADDITION, NO WARRANTY IS MADE AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE, OR AS TO THE ACCURACY, RELIABILITY, OR CONTENT OF ANY PRODUCT, SERVICE, OR INFORMATION PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICE.  YOU AGREE AND ACKNOWLEDGE THAT OPENLANE IS NOT LIABLE OR RESPONSIBLE FOR ANY SYSTEM FAILURE, MISDIRECTION OF PAYMENT, OR SYSTEM ERROR THAT WAS BEYOND OPENLANE’s CONTROL.  ALTHOUGH OPENLANE USES REASONABLE SECURITY AND ENCRYPTION PROVISIONS, WE DO NOT GUARANTEE AND MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING OUR ABILITY TO PREVENT UNAUTHORIZED ACCESS OF OR TAMPERING WITH THE SERVICE OR INFORMATION ACCESSIBLE THROUGH THE SERVICE.  YOU ACKNOWLEDGE THAT INFORMATION TRANSMITTED THROUGH THE INTERNET OR ACCESSIBLE THROUGH THE INTERNET IS NEVER COMPLETELY SECURE.

 

7. Disclosure of Information

 

OPENLANE maintains reasonable procedures designed to prevent unauthorized access to Your information, accounts, and records.  By using the Service, you consent and authorize OPENLANE to disclose to third parties, including but not limited to auditors, attorneys, banks, and service providers, information that You have provided, that is contained in OPENLANE's account files, or that We have obtained about Your account(s):

 

1. If required or permitted to do so by law; or

 

2. To verify the existence and condition of Your account for a third party, such as a credit bureau, or a financial institution; or

 

3. In conjunction with a transaction You initiate through the Service; or

 

4. When acting under urgent circumstances to protect the safety of OPENLANE or its employees or a member of the public; or

 

5. If You give or have given Us Your permission.

 

OPENLANE takes reasonable steps to protect information received from You, but does not guarantee such data will be completely secure from misappropriation by hackers or from other nefarious or criminal activities, or in the event of a failure of computer hardware, software, or a telecommunications network.

 

8. Liability

 

Except as specifically provided in this Agreement or where the law requires a different standard, You agree that OPENLANE is not responsible for any loss, property damage or bodily injury, whether caused by the equipment or software of OPENLANE, or by Internet browser providers such as Microsoft® (Internet Explorer® browser, Edge browser), Mozilla® (Firefox® browser), and Google® (Chrome™ browser), or by Internet access providers, or by online service providers, or by an agent or subcontractor of any of the foregoing.

 

OPENLANE, ITS SUBSIDIARIES AND AFFILIATES, SUCCESSORS, AND ASSIGNS, AND ANY DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, OR LICENSORS OF ANY OF THE FOREGOING (COLLECTIVELY, " OPENLANE ASSOCIATES") SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR ACCESS TO OR USE OF THE SERVICE OR INABILITY TO GAIN ACCESS TO OR INABILITY TO USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY.  BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.  IN NO EVENT SHALL OPENLANE’S LIABILITY TO YOU UNDER THIS AGREEMENT EXCEED ONE THOUSAND DOLLARS ($1000.00), WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR ANY OTHER CAUSE OF ACTION.  YOU SPECIFICALLY ACKNOWLEDGE THAT NEITHER OPENLANE NOR ANY OPENLANE ASSOCIATE, SHALL BE LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.  TERMINATION OF THIS AGREEMENT WITH OPENLANE IS YOUR SOLE RIGHT AND REMEDY WITH RESPECT TO ANY DISPUTE WITH OPENLANE.  TERMINATION OF THIS AGREEMENT DOES NOT AFFECT THE RIGHTS AND OBLIGATIONS ARISING UNDER ANY SERVICES AGREEMENT.  THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF OPENLANE'S RECORDS OR INFORMATION, OR THE RECORDS OR INFORMATION OF OPENLANE'S AFFILIATES, SUCCESSORS, OR ASSIGNS, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.  REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THIS SERVICE MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ACCRUES, OR BE FOREVER BARRED.

 

9. Remedies

 

Any dispute initiated by You and arising under this Agreement shall be resolved through the dispute provisions of the applicable Services Agreement.  If the Services Agreement does not provide for dispute provisions or if the dispute provisions of the Services Agreement are found to be inapplicable to this Agreement, any dispute initiated by You and arising out of or related in any manner to this Agreement shall be settled exclusively by courts in the State of Indiana, without reference to any conflict of law provisions of any state.  You expressly consent to personal jurisdiction in the State of Indiana.  Notwithstanding the foregoing, claims for equitable or injunctive relief may be brought in any court of competent jurisdiction.

 

10. Other General Terms

 

The Service is provided for lawful purposes only.  You acknowledge and agree that the provisions, disclosures and disclaimers set forth in this Agreement are fair and reasonable and Your agreement to follow and be bound by them is not the result of fraud, duress or undue influence exercised upon You by any person or entity.

 

You shall not access or attempt to access password protected, secure, or non-public areas of the Service, except with the authorization of OPENLANE. OPENLANE has no obligation to monitor the Service; however, You acknowledge and agree that OPENLANE has the right to monitor the Service electronically from time to time and to disclose any information as necessary or appropriate to satisfy any law, regulation, or other governmental request, to operate the Service properly, or to protect itself or the general public.

 

No representations or guarantees have been made to You, except as set out in this Agreement. In addition to complying with the terms and conditions of this Agreement You agree to be bound by and will comply with the requirements of the rules and regulations of any funds transfer system.

 

The failure of OPENLANE to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect.  Any ambiguities in this Agreement shall not be strictly construed against the drafter of the language concerned, but shall be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the intentions of the parties at the time of contracting.  The provisions of this Agreement which by their nature extend beyond the termination of this Agreement shall survive termination of this Agreement.  The headings of this Agreement are for convenience only and will not be used in the construction or interpretation of the Agreement.

 

You may not assign this Agreement without OPENLANE's prior written consent.  OPENLANE may assign this Agreement without requiring your consent, and may assign or delegate its rights and responsibilities under this Agreement.

 

This Agreement, including any documents referenced herein and any additional operating rules as posted on the Service represents the entire understanding between You and OPENLANE regarding Your use of the Service.  This Agreement supersedes all previous written or oral agreements between You and OPENLANE with respect to the Service.  For avoidance of doubt, nothing in this Agreement amends or modifies the provisions of Your Services Agreement.