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Global Debt Network Automotive Terms of Use
Effective Date July 24, 2008 Introduction Global
Debt Network, Inc., a California corporation, has developed a web-based
software system known as "GDNAuto" which is designed to facilitate the online
sale of motor vehicle secured loan portfolios. The GDN Auto software may
be accessed by registered members through Global Debt Network, Inc.'s website, www.GDNAuto.com (the "Site"). Registered users of the Site include
financial institutions, automobile dealerships and/or their related finance
companies and financial institutions, finance companies, brokerage firms, or
similar entities (each, a "Member"). In this
Terms of Use Agreement we refer to the GDNAuto software product, as accessed
through the Site for the mutual benefit of the Members, as the GDNAuto "System"
or the "Global Debt Network". The terms
"us", "we", "our" and "the Company" refer to Global Debt Network, Inc.
The terms "you" and "your" refer to your company which has registered as a
Member. A Member
who uses the Global Debt Network to attempt to buy, or to buy, motor vehicle
secured loan portfolios is referred to as a "Buyer." A Member who
uses the Global Debt Network to attempt to sell, or to sell, motor vehicle
secured loan portfolios is referred to as a "Seller." Acceptance of Terms by Registration and Use THIS
TERMS OF USE AGREEMENT SETS FORTH THE LEGALLY BINDING TERMS GOVERNING YOUR USE
OF THE GLOBAL DEBT NETWORK. YOU ARE NOT PERMITTED TO USE THIS SITE IF YOU
DO NOT AGREE TO BE LEGALLY BOUND BY THIS TERMS OF USE AGREEMENT. PLEASE
READ THIS AGREEMENT CAREFULLY. By registering for use of the Global Debt
Network, you acknowledge and accept that the registration for services on this
Site by an Authorized Representative, and the usage thereafter of the services
by additional representatives, constitutes agreement to this Terms of Use
Agreement ("Terms of Use" or "Agreement") on your behalf. We may, in our
sole discretion, modify this Agreement from time to time and such modification
shall be effective upon posting by us on this Site. We maintain an
internal alert and messaging system as a courtesy to our Members, and we will
notify members via either the alert or messaging service of such modifications
as well. At the time of a material modification, we will change the effective
date below. You agree to monitor and be bound by any changes to this
Agreement when you use the Global Debt Network after any such modification is
posted. Your continued use of the System after any such change
constitutes your acceptance of the new Terms of Use. Authorized Users Only The use
of this Site is restricted to authorized users. By registering and/or
using the Global Debt Network, you represent and warrant that (1) you are
either a representative of a motor vehicle dealer, its related finance company,
a financial institution, a finance company, a brokerage firm, or similar entity
authorized to enter into this Agreement for services (Authorized Representative)
or have been authorized to use the Global Debt Network by the Authorized
Representative of a motor vehicle dealer, its related finance company, a
financial institution, a finance company, a brokerage firm, or similar entity;
and (2) all information you submit on the System is correct and complete.
Registration and Verification You
understand that, upon registration, we will verify the business information of
each registrant to ensure that only the most qualified applicants are allowed to
trade on the GDNAuto platform. By registering on our site, you agree and
acknowledge that we will submit information you provide to third party service
providers, such as Equifax, Credco or Experian, to obtain certain reports, such
as business profile and fraud reports, in order to verify business information
and to determine your eligibility to participate in the GDNAuto System
marketplace and agree to such submission. We will not share these reports
with any third party other than as necessary to conduct our prescreening
registration process. We base
membership eligibility on various criteria including, but not limited to, the
results of Office of Foreign Assets Control and the existence of bankruptcy
filings, fraud claims, tax liens and valid business licenses. You agree
to provide us copies of your business qualifications and line of business
licenses. If requested, you agree to submit your company's compliance contact
information and permit us to verify that certain individuals and companies are
authorized to transact on the System. We
reserve the right to approve or deny any applicant's membership request in our
discretion regardless of the outcome of the criteria reviewed by us. If
your application is accepted, you will be granted a user name and password to
access the System. You may provide the user name and password to your
staff on a "need to know" basis. You are responsible for maintaining the
confidentiality of any user name or password given to access the Site or
System, and are solely responsible for all activities that occur under such
name and password. You agree to notify us immediately of any unauthorized
use of your user name or password. The Company maintains exclusive
control of access and right of access to the System. You understand and
agree that we reserve the right to revoke your membership at any time without
notice or cause of action for any reason whatsoever. Fees You agree
to pay fees as set forth on our GDNAuto Pricing List unless we agree, in
writing, to a special membership program fee. Any fees or payments
collected by the Company applicable to your use of the Global Debt Network are
governed by this Agreement and the GDNAuto Pricing List (Available for download
at www.GDNAuto.com) and/or any special membership program terms. You
agree and acknowledge that the payment terms stated in this Agreement are in
addition to the terms of any portfolio purchase transaction you complete, as
that transaction is strictly between you and the other party to the transaction.
Portfolio Listings You
understand that the term "Portfolio Listings" means a group of debt receivables
(Whole Loans) secured by motor vehicles that are submitted for sale by sellers
who are not in any way affiliated with the Company (each a "Seller"). We
do not adopt, confirm, endorse or ratify in any way any statements,
representations or information contained in any such Portfolio Listings, nor do
we recommend, endorse or sponsor any activities, products, services, policies
or practices of Seller or any agent of Seller. The Seller submitting
Portfolio Listings to the Global Debt Network is solely and exclusively
responsible for such Portfolio Listings and represents and warrants that all
portfolio information submitted through the System is truthful, reliable,
accurate, and complete. We do not screen or review any Portfolio
Listings, or provide warranties regarding the accuracy or completeness of any
Portfolio Listings. You
understand that a Seller may limit the length of time its Portfolio Listing is
open for bidding and, in its sole discretion, may extend such time limit.
Bidding Buyers
may limit the length of time a bid is valid. Once bids are submitted and
confirmed bids may not be revised or withdrawn during this valid period, except
in exceptional circumstances as determined by us in our sole discretion.
You agree that you will not engage in any type of fraudulent bidding activity
including, without limitation, shill bidding (Shill bidding means bidding the
price or purchase terms of a portfolio up without the intention of actually
purchasing the portfolio) or bid sniping (Bid Sniping means waiting to the last
few moments of an open auction prior to closing of the auction. Bid sniping has little effect on the
GDNAuto platform since the highest bid does not automatically win a bid. All winning bid decisions are made
solely by the actual seller.) Sellers
may accept or reject bids in their sole discretion. We remove all rejected bids
from the Portfolio Listing and a listing Seller may choose, but is not
required, to provide the bidder the reason for the rejection. If a
Seller provides a reason, you understand that the System will notify the bidder
of such reason and provide the bidder another opportunity to re-bid with the same
listings and criteria populated. You further understand that Sellers are
not required to accept any bids submitted on the System. Acceptance of Initial Bid If
Buyer's initial bid is accepted by Seller, Buyer will complete the due
diligence review described below promptly and in good faith. You understand
that such acceptance in no way constitutes a contractual obligation or binding
agreement by either party to buy or sell the selected portfolio. Instead, you
agree and acknowledge that such acceptance establishes the preliminary good
faith intention of the parties to pursue the contemplated transaction.
Further, you agree to sign a letter of intent and non-disclosure agreement
prior to beginning the due diligence process described below. Due Diligence and Document Vault All loan
documentation and portfolio information is owned by the portfolio seller and is
considered confidential in nature.
Any breach of confidentiality by a winning bidder doing due diligence as
covered in the accepted non-disclosure agreement may result in action take by
the seller against the winning bidder.
Promptly
following initial acceptance of its bid, Buyer will review the related
portfolio documentation provided by Seller. We provide a secure document
repository ("Vault") for the Seller to upload and post the portfolio
documentation necessary for a potential Buyer to conduct its due diligence of
the selected portfolio. The Company makes no representations or
warranties regarding any of the documents archived or maintained in the
Vault. You
understand that any and all data, information, or documentation maintained in
the Vault is confidential in nature and is governed by both this Terms of Use
and any separate non-disclosure agreement entered into by a Seller and a
Buyer. Further, you agree to grant us access to any data, information, or
documents posted in the Vault as necessary for us to administer and carry out
the services described on the Site and in this Terms of Use Agreement. Acceptance of Final Bid You
understand that upon the completion of the due diligence process, Buyer may
select the specific accounts that it will purchase and submit a final offer,
based upon the original bid and the results of its due diligence, to the Seller
with the list of the selected accounts and the purchase terms. Seller
agrees to accept any final offer that is consistent with the original purchase
terms. You understand and agree that if there is any change in the
original bid's purchase terms, you are required to submit proof of reason of
any change and the Company or, if required, a third party mediator will assist
in mediating any changes in purchase terms. You acknowledge that we are not
responsible or liable for any action or inaction of any party to a portfolio purchase
terms change request or for the outcome of such request. You also
understand that purchase terms change requests and specific changes may be
noted on a member's public profile.
The following example is for example purposes only and is not a complete
representation of the "change request" and "specific changes" displayed to
members of the system. For
example, if a winning bidder's initial bid indicates a willingness to purchase
50% to 80% of a portfolio at price x and after due diligence the winning
bidder's final offer indicates a willingness to purchase 25% of the same
portfolio, we may display such potential discrepancies for future sellers to
use as part of their decision process to accept a specific buyer's initial bid. Once the
purchase terms are accepted, the parties shall execute a portfolio purchase
agreement in the form provided through the Site entitled "GDNAuto Portfolio
Purchase Agreement" or in a form mutually acceptable to Seller and Buyer (a
"Custom Purchase Agreement"). You understand that, in order to use a
Custom Purchase Agreement, the provider of the agreement must provide such
agreement to the other party sufficiently in advance for the other party to
review prior to acceptance of final offer. You understand that neither the
GDNAuto Portfolio Purchase Agreement nor a Customer Purchase Agreement offered
on the System may be used as a substitute for legal advice and agree to engage
your own counsel to review such agreements prior to their execution. Funding Disclaimer We offer
our members the option of funding portfolio purchase transactions through Wells
Fargo® escrow services. If you choose this service, you understand that
in order to open the escrow, the Company will disclose confidential Member
information to Wells Fargo® and you agree that we may share such information
including without limitation Member telephone numbers, copies of regulatory
licenses or similar documentation as necessary to open escrow. We
expressly disclaim any warranties with respect to any delays or errors in the
transmission or delivery of any information, materials, or services through
Wells Fargo® escrow services or any other third party involved in the funding
process (such as a third party courier service or a bank) and you agree that we
are not responsible or liable for any such delays or errors. Currently,
both parties must use Wells Fargo® escrow service and both parties must be
approved by Wells Fargo®. However, we reserve the right to offer buyer and
seller different escrow servicing options or direct wiring as long as those
options are approved by both the buyer and seller or seller and bidder of a
specific transaction. Electronic Agreements You
understand that when you electronically agree to any business terms provided
through the Site, including without limitation, any document related to a
portfolio purchase transaction, such action is legal and binding. You
also understand that certain members may require additional or supplemental
documentation to the standard documents provided or offered for use through the
Site. For example, we are
currently using a non-disclosure agreement and letter of intent. We are constantly working to provide
buyers and sellers with more transaction efficiency and in doing so, may
require additional agreements to be approved/signed which will also be deemed
legally binding. Confidential Information You
understand that "Confidential Information" means the nonpublic and proprietary
information revealed by or about the Company, the System, and its
members. You understand that you will have access to or will
receive Confidential Information and agree that you will keep all information
acquired from the System, whether in connection with your use or otherwise,
confidential. You agree that you will only use the Confidential
Information for the purposes of evaluating the selected portfolio and will only
permit access to employees or other designated individuals who are assisting
with the evaluation. Further, you agree that you will not use the information
and will not disclose to any third party other than as permitted through use of
the System or as required by law. You agree
to comply with all data privacy and protection laws, rules, and regulations
applicable to the use of the Global Debt Network or to any data or information
provided therein. Further, you represent and warrant that you will comply
with federal and state laws relating to the acquisition, use, and handling of
nonpublic personal information including, without limitation, information
subject to the Fair Credit Reporting Act, 15 USC § 1681
et
seq. and the Gramm-Leach-Bliley Act, § 6801-6810 et seq. and all applicable regulations. The Company agrees to hold the
described nonpublic personal information in confidence and not to intentionally
disclose such information to any third party or use it for any purpose other
than as necessary to carry out the Global Debt Network services or as permitted
by law. We also agree to maintain all physical, technical, and
administrative safeguards required by law to protect nonpublic personal
information from unwarranted, accidental or unauthorized access, disclosure,
modification or destruction. Non-circumvention Agreement. You
understand and agree that upon acceptance of Portfolio purchase terms, you will not at any time attempt to in any manner
to circumvent us or the System or otherwise exploit our services or the System
or deal directly with other Member in connection to the subject Portfolio
Listing(s) without our approval. In the event of a direct circumvention
by you, we may be entitled to damages in the amount of the GDNAuto transaction
fee that would have been payable absent your circumvention, as well as any
other remedies available to us at law or at equity. Legal No Legal
Advice. The Company does not provide legal services or
engage in the practice of law. You understand and agree that no
information provided on the Site or posted in connection with GDNAuto is
intended to constitute, or constitutes, legal advice. You agree that
standardized documents and provisions (including without limitation, the GDN
Portfolio Purchase Agreement) offered on the Site or in connection with the
System should not be used as a substitute for legal advice and should be
reviewed by your own counsel. You
understand that the Company is not responsible for any verification or legal
review of the Portfolio Listings or related documentation and acknowledge that
Company does not warrant compliance with state or federal law or the
enforceability of any document maintained in the Vault. You understand
and agree that it is your responsibility to evaluate and confirm the validity
and legality of the portfolio listings and related documentation. Legal
Compliance.
You agree to comply with all applicable laws, statutes, and regulations with
respect to your use of the System. You further agree to obtain and maintain
during the term of this Agreement all regulatory approvals, authorizations,
licenses, permits, and other permissions, consents, and authorities whatsoever
needed to use the System.
No Third Party Liability You
acknowledge that the Company is not liable for any action or inaction of any
other party to a portfolio purchase transaction completed using the GDNAuto
System, including with out limitation any failure to perform, to pay any
amounts due or to deliver any assets as promised. You understand that it
is your responsibility to evaluate and confirm the correctness and sufficiency
of the Portfolio Listing documentation and related data, materials or
information available through the System, whether made available to you by
third parties or by the Company. Indemnity You agree
to defend, indemnify, and hold harmless the Company, its officers, directors,
employees, and agents from and against all claims, demands, liabilities,
damages, losses or expenses, including reasonable attorneys fee's and costs,
caused by or arising out of: (a) your access to or use of the System, (b)
any violation by you of these Terms of Use or (c) any content, data, materials
or information you submit, post to or transmit to or through the
System. Term and Termination This
Agreement commences on the date of your electronic acceptance of this Agreement
and continues until terminated by either party in the manner stated below. You
understand and agree that we reserve the right to revoke your membership at any
time without notice or cause of action for any reason whatsoever. General Provisions This
Agreement constitutes the entire agreement between the parties pertaining to
the subject matter contained in it and supersedes any previous Terms of Use
Agreement to which you and the Company may have been bound. We may assign
this Agreement, in whole or in part, at any time with or without notice to
you. You understand that you may not assign this Agreement, or assign,
transfer, or sublicense your rights, if any, without our express written
consent which we may withhold in our sole discretion. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute, a waiver
of any other provision, whether or not similar, nor shall any waiver constitute
a continuing waiver. If any provision of this Agreement is held invalid
or unenforceable by any court of final jurisdiction, it is the intent of the
parties that all other provisions of this Agreement be construed to remain
fully valid, enforceable, and binding on the parties. The captions of
paragraphs used in this Agreement are for convenience only. Governing Law This
Terms of Use has been executed in the State of California, and shall be
governed by and construed in accordance with the laws of the State of California
without regard to its conflicts of laws provision. You agree that any
legal action to enforce or interpret the provisions of this Agreement may be
commenced only to the jurisdiction of the state or federal courts located in
Los Angeles County, State of California. If any legal or equitable action
is brought for the enforcement of this Agreement, the prevailing party or
parties shall be entitled to recover reasonable attorneys' fees and other costs
incurred in that action or proceeding, in addition to any other relief to which
it or they may be entitled. This provision shall survive the expiration
or termination of this Agreement.
Mediation and Arbitration In the event a dispute shall arise between the parties to this terms of use or between a GDNAuto system member (i.e. buyer and seller) the parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration & Mediation. The parties agree to share equally in the costs of the mediation. Global Debt Network recommends: National Arbitration Forum Phone: 952-516-6400 Mediation
involves each side of a dispute sitting down with an impartial person, the
mediator, to attempt to reach a voluntary settlement. Mediation involves no
formal court procedures or rules of evidence, and the mediator does not have
the power to render a binding decision or force an agreement on the parties. Intellectual Property Statement As
between the parties, all Intellectual Property Rights in the System including
without limitation the GDNAuto System software object code and source code, all
Site images, text, sound, photos, custom graphics, button icons, the collection
and compilation and assembly thereof, and the overall "look and feel" and
distinctiveness of the Site are the sole and exclusive property of the Company.
"Intellectual Property Rights" means, collectively, patent rights (including
patent applications and disclosures), copyright rights (including, but not
limited to, rights in audiovisual works and moral rights), trade secret rights,
trade dress rights, and any other intellectual property rights recognized by
the law of each applicable jurisdiction. The
absence on the Site of our name or logo does not constitute a waiver of our
trademark or other intellectual property rights relating to such name or logo.
All other product names, company names, marks, logos, and symbols appearing on
the Site may be the trademarks and the property of their respective
owners. Except as
explicitly stated in this Agreement, you many not use, sell, license,
sublicense, rent, modify, distribute, copy, reproduce, transmit, publicly
display, publicly perform, publish, adapt, edit, or create derivative works
from the GDNAuto software, the Site or the System. You may print or download
information or products from the Site for your own use, provided that you keep
intact all copyright and other proprietary notices. Systematic retrieval of
information from the GDNAuto software, the Site or the System to create or
compile, directly or indirectly, a collection, compilation, database, or
directory without written permission from the Company is prohibited. For
information on requesting such permission, please contact Michael
Sheridan President/CEO Global
Debt Network, Inc. 1499
Danville Blvd. Alamo, CA
94507 866-559-4339 Effective Date July 24,
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Management
Team 
