The Essex Difference

Website terms of use

This Terms of Use stipulates the terms on which Essex Lease Financial Corporation (“Essex”) offers parties access to http://www.elfc.ca and all subpages (the “Website”). Using the Website constitutes agreement to the following terms.

The Website’s Terms of Use (“Terms of Use”), including the Consignment Agreement and the Purchaser Agreement (the “Essex Agreements”) and any other terms linked to the Terms of Use, govern and apply to the Website. All defined terms in each Essex Agreement have the same meaning in all Essex Agreements. Review and acceptance of the Terms of Use is a prerequisite for selling or purchasing an Item through the Website. The Terms of Use govern your use of this Website; by using the Website, “You”, the “User”, accept these terms and conditions in full.

Essex reserves the right to amend the Terms of Use at any time and any amendment is effective immediately after it is posted on the Website. Continued use of this Website by any party constitutes acceptance of changes to the Essex Agreements. The Terms of Use can be amended by Essex. This Terms of Use is in force until terminated by Essex. If You disagree with this Terms of Use or no longer wish to be bound by it, your sole remedy is to terminate your use of this Website. Upon any termination of this Terms of Use, all obligations of either party set forth herein which relate to transactions by such party prior to such termination shall survive such termination and continue in effect.

VENUE FOR PURCHASERS AND VENDORS

This Website is only a venue or marketplace. Essex is not a party to any transaction between Purchasers and Vendors. Essex does not take title to the Items at any point in transactions that occur through use of this Website. Subject to our limited role as escrow agent, Essex is not an agent of Purchaser or Vendor. Essex makes no guarantees as to quality, safety, or legality of any Item listed for sale on the Website, the truth or accuracy of any information about any Item listed for sale on the Website, the ability of a Vendor to sell any Item listed for sale on the Website, the ability of Purchasers to pay for any Item listed for sale on the Website, or that a Purchaser or Vendor will actually complete a transaction.

Essex retains the right to temporarily or permanently remove any Item listed for sale on the Website for any reason whatsoever.

LISTING PROCEDURE

Upon completion of a Consignment Agreement with Essex, the Vendor as defined in the Consignment Agreement immediately becomes a “Vendor” under the Essex Agreements, and assumes all responsibilities conferred on Vendors in the Essex Agreements. All Items listed on Schedule “A” of the relevant Consignment Agreement will then be listed for sale on the Website. All Items listed for sale on the Website will be listed in Canadian currency.

Any Vendor listing an Item for sale on the website assumes sole responsibility for representing their exclusive authority to sell such Items, free and clear of any liens, claims or other encumbrances, and to accurately describe each piece of equipment with no material misrepresentations.

Once an Item is listed for sale on the Website, the Vendor may contact Essex to request any change of the information describing the listed Item, including correcting any inaccuracies. Essex is not liable for any inaccurate information included on the Website, nor is Essex legally required to comply with any change requested by the Vendor.

BIDDING PROCESS

Any party who submits a bid on an Item listed on the Website immediately becomes a “Purchaser”, and assumes all responsibilities conferred on Purchasers in the Essex Agreements. All bids submitted by bidders on listed Items are legally valid and binding. Bids are binding from the time of submission through the end of the bidding period. Purchasers agree that submitting a bid for Items listed for sale on this website is the legal equivalent of a firm purchase order. A Purchaser may not retract a bid once it is submitted. If a typographical error is made when submitting a bid, the Purchaser must contact Essex regarding said error within one hour or ten minutes prior to the close of bidding for that specific Item, whichever is sooner. Essex reserves the right to approve or deny any bid retraction requests, and a retraction may result in default proceedings against the Purchaser.

Price manipulation, or any other activity taken to disrupt the integrity of the bidding process, is strictly prohibited. Users who, in the sole discretion of Essex, engage in such activity, will be barred from purchasing or selling Items on the Website. Essex reserves the right to reject or void any bid which, in Essex’s sole discretion and determination, Essex believes has not been made in good faith, is manipulative in intention, or is prohibited by applicable law.

Bidding on listed Items will be conducted in accordance with the Consignment Agreement associated with that specific Item. Subject to the terms of the Consignment Agreement, an Item may be subject to real-time pricing bidding, whereby a new bid may extend the bidding period. All Items subject to real-time pricing bidding will be appropriately identified.  Essex bears no responsibility to any User to advise the User of any development it the bidding process, including but not limited to submission of a higher bid or extension of a real-time bidding process.  If Essex does advise a User of a development it the bidding process, this does not create the obligation to provide any updates related to bidding.

Any bidder who did not submit the highest bid at or prior to the close of bidding does not have a legally enforceable agreement against Essex or any Vendor, save for any obligations the Purchaser has to Essex under the Essex Agreements. A Purchaser can only submit a bid on an Item that is listed on the Website, and the bid must be higher than all previous bids. The leading bid amount will be displayed to all Users of the Website.

Essex reserves the right to intervene in any manner that it deems appropriate to rectify any issues in the bidding process that arise from a technological malfunction.

PAYMENT AND TRANSFER PROCESS

Once bidding has closed, the listing party and the highest bidder are required to sell and purchase, respectively, the listed Item at the price of the winning bid.

Payment and transfer of the Item will be conducted in accordance with the Consignment Agreement associated with that specific Item. Upon the close of bidding, Essex will advise the Purchaser and the Vendor by delivering an invoice to each parties’ respective email addresses. The Purchaser is required to pay Essex the purchase price, as determined by the winning bid, on the date specified in the invoice, which will not be more than 7 days from the conclusion of the bidding process. Essex will hold the funds in escrow. Essex will notify the Vendor and Purchaser once the payment is held in escrow.

The Purchaser is required to collect the Item from the Vendor on a date specified by the invoice. If the Purchaser fails to collect the Item by the specified date, the Purchaser is liable to the Vendor for storage fees. The Purchaser agrees the specified date is a material term of their agreement concerning the use of the Website and purchase of the Item. The Vendor is required to provide the Purchaser with a “Bill of Sale” comparable to the precedent form Bill of Sale provided by Essex and any documents of title as required by law if applicable.

The Purchaser and the Vendor are required to inform Essex if and when possession of the Item has been successfully transferred to the Purchaser by way of a “Release Agreement”, which must be executed by the individuals who executed the Consignment Agreement and Purchaser Agreement on behalf of the respective parties. If applicable, transfer of possession must include transfer and/or amendments to a certificate of title, or comparable document. In such cases, the transfer and/or amendments to said document will be required as part of the transfer process. The Purchaser and Vendor are responsible for the validity and legality of any said document.

Essex will release the funds to the Vendor only once both parties to the transaction have advised of a successful transfer of possession. Once escrow funds are disbursed in conformity with the requirements of the Essex Agreements, Essex shall be relieved of all further liability with respect to the escrow funds, and the Purchaser and Vendor must thereafter deal directly with each other concerning the release of escrow funds. Essex will only release any or all of the escrow funds upon written consent from the Purchaser and Vendor, a court order requiring release of the escrow funds, or to a law firm at the written direction of both parties. Essex will not release any or all of the escrow funds when the Purchaser and Vendor are engaged in a dispute.

FEES

With respect to regular transactions facilitated by the Website, Essex will only charge fees to Vendors pursuant to the relevant Consignment Agreement. Essex reserves the right to charge default fees to Vendors and Purchasers for any breach of any term of the Essex Agreements. This default fee can be any amount deemed commensurate to the breach, in Essex’s sole and absolute discretion.

TAXES

The Purchaser and Vendor are responsible for any tax of any taxing authority that applies to any transaction facilitated through the Website. The Purchaser and Vendor are further responsible for any reporting or remittance for any tax of any taxing authority that applies to any transaction facilitated through the Website.

USER DISPUTES

Both the Purchaser and Vendor agree not to hold Essex responsible for any User’s actions or inactions relating to the purchase and sale of Items listed on this Website. In any dispute, You agree to release Essex, its subsidiaries and affiliates, and its and their respective officers, directors, agents, employees and third party suppliers, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, including without limitation those claims, demands and damages based in whole or in part upon our or their negligence, gross negligence, statutory liability or strict liability, arising out of or in any way connected with such dispute.

In the event that a dispute between Users involves any form of legal action involving Essex, in addition to any commissions and fees hereunder, both parties will jointly and severally indemnify Essex on a solicitor and client full indemnity basis.

ELIGIBILITY AND REGISTRATION

This Website is available only to individuals and entities that can form legally binding contracts under applicable law, and is not available to minors. All Users represent and warrant that (i) all User information provided during registration is accurate and complete, and (ii) the User will update such User information from time to time so that it is kept current, accurate and complete at all times. If the User is registering with Essex on behalf of an entity, the User represent that the User has the authority to legally bind that entity. You are solely responsible for all conduct and transmissions that take place under your name and password. Essex may ask for additional information at any time to verify your registration information. Essex may, in our sole and absolute discretion, refuse to accept a party’s registration.

USER RESPONSIBILITIES

When using this Website, You agree that you will not violate any laws or the specific rules or policies applicable to this Website; violate or infringe, or cause Essex to violate or infringe, the intellectual property or other rights of any third party, including copyright, trademark, trade secret, privacy and other proprietary rights; fail to complete any transaction, whether as Purchaser or Vendor; manipulate the price of any posted Item, whether by making a bid through a secondary account or other party, by communicating with other Purchasers or by any other means.

If Essex and/or its agents reasonably believe in their sole discretion that any User or the entity it represents is in breach of the Terms of Use, Essex may deactivate your account and charge any default fee allowed by the Essex Agreements.

EXCLUSIVITY

All Items listed on the website are subject to an exclusivity agreement, wherein the Vendor gives Essex the exclusive right to assist the Vendor in selling the Item. As long as exclusivity agreement is in effect, the Vendor is required to pay Essex the appropriate commission fee for sale of said Item.  If the Vendor receives, solicits, or accepts, an offer to purchase any Item listed for sale on the Website through any means other than the Website, Essex is entitled to collect all commission fees that would be payable to Essex as if such Item had been sold through a completed online sale on the Website. If this transaction is disclosed to Essex by the Vendor, the commission will be equal to the commission as if it were sold through the website. If this transaction is not disclosed to Essex by the Vendor, the commission will be equal to twice the commission as if it were sold through the website.

LIMITATION OF LIABILITY

You agree that your use of the Website is at your sole risk. Essex makes no warranty concerning bugs, viruses, Trojan horses or any other problems which may be transmitted to or through the Website Service by any third party, or concerning damage of any kind incurred resulting from use of the Website. Essex does not endorse and is not responsible for any product or service advertised or offered by a third party through the Website Service or any hyper-linked website. In no event shall Essex be liable for any loss, claim, damage or expense, or any special, incidental, indirect, consequential or punitive damages of any kind, including lost revenues or profits, directly or indirectly arising out of your use of or inability to use this Website, or any transaction completed or attempted to be completed by any User through this Website.

Without limiting the generality of the foregoing, in no event shall Essex be liable for any loss, claim, damage or expense, or any special, incidental, indirect, consequential or punitive damages of any kind arising from representations made by Essex under the headings of INFORMATION SHARING, INFORMATION SECURITY, and DATA INTEGRITY in the Terms of Use.

INDEMNIFICATION

You agree to indemnify, defend and hold Essex harmless, as well as our subsidiaries and affiliates, and our and their respective officers, directors, employees, agents and third party suppliers, from and against any and all claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, without limitation, reasonable legal fees), brought by or on behalf of any third party against any of the aforementioned that arises out of or in connection with your use of the Website on a solicitor and client full indemnity basis.

DISCLAIMERS

Essex disclaims all representations and warranties of any kind, express or implied, as to the operation, accessibility or security of this Website, and the accuracy, completeness, currency or reliability of any of the content or data found on this website including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Essex does not warrant that this website or the functions, features or content on this website will always be available, accessible, uninterrupted, and secure or operate without error. Essex expressly disclaims, and all Users release Essex from, any responsibility for any misrepresentations or breaches committed by any Purchaser or Vendor.

NOTICES

Notices given to Essex are only valid if delivered by email and certified mail to:

ESSEX LEASE FINANCIAL CORPORATION

770, 10655 Southport Road SW

auction@elfc.ca

Notices to Purchasers and Vendors will be sent by e-mail to the e-mail address given to Essex when the User registered with Essex, or such other e-mail address as the User may provide by e-mail to Essex from time to time. Notices to Essex shall be deemed to have been received 24 hours after the e-mail is sent.

COLLECTION AND USE OF INFORMATION

In order to provide our full range of Services available through the Website, Essex may collect the following types of information: (i) information provided directly by the User, meaning personal information (such as name, contact information and an account password, credit card or other payment account information) which Essex maintains in encrypted form on secure servers. All such information will be used only for the purposes for which it was provided; (ii) cookies, meaning one or more cookies sent to a computer that uniquely identifies the User’s browser; these cookies are intended to improve the quality of service by storing User preferences and tracking User trends, such as how people search; Users can reset browser settings to refuse all cookies or to indicate when a cookie is being sent, however, some website features and services may not function properly if cookies are disabled; (iii) log information, meaning information collected when Essex servers automatically record information sent by a visitor’s browser, which may include information such as web request, Internet Protocol address, browser type, browser language, the date and time of requests, referring/exit pages and URLs, platform type, number of clicks, domain names, landing pages, pages viewed and the order of those pages, the amount of time spent on particular pages and one or more cookies that may uniquely identify the browser; (iv) clear gif information, meaning web beacons which are used to track the online usage patterns of Users anonymously; note these can also be used in HTML-based emails sent to Users to track which emails are opened by recipients; (v) User communications, which may be retained to process inquiries, respond to requests and improve services; and (vi) links in a format that enables Essex to keep track of whether these links have been followed, for the purpose of improving the quality of Essex’s search technology, customized content and advertising.

The Terms of Use applies to the Website and services that are owned and operated by Essex. Essex does not exercise control over the sites displayed as links from within Essex’s various services, which may have their own policy regarding the collection and use of personal information. Essex processes personal information on servers in the United States and Canada. Essex may process personal information to provide further services. In some cases, Essex may process personal information on behalf of and according to the instructions of a third party, such as advertising partners.

CHOICES FOR PERSONAL INFORMATION

Website registration requires the provision of personal information. For the use of personal information for any purposes other than those described in this Policy, Users will be provided with an effective way to opt out of the use of personal information. Essex will not collect or use personal information for purposes other than those described in the Essex Agreements or in the specific service notices, unless Essex has obtained prior consent of the User.

Declining to submit personal information may result in Essex’s inability to provide those services.

INFORMATION SHARING

Essex only shares personal information with other companies or individuals outside of Essex in the following limited circumstances: the User has provided consent; Essex provides such information to affiliated companies or other trusted businesses or persons for the purpose of processing personal information on behalf of Essex; Essex requires that these parties agree to process such information based on Essex’s instructions and in compliance with this Policy and any other appropriate confidentiality and security measures; AND Essex has a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request, (b) enforce the Terms of Use including investigation of potential violations thereof, (c) detect, prevent, or otherwise address fraud, security or technical issues, or (d) protect against imminent harm to the rights, property or safety of Essex, its Users or the public as required or permitted by law.

INFORMATION SECURITY

Essex takes appropriate security measures to protect against unauthorized access to or unauthorized alteration, disclosure or destruction of data. These include internal reviews of our data collection, storage and processing practices and security measures, as well as physical security measures to guard against unauthorized access to systems where Essex store personal data.

Essex restricts access to personal information to Essex employees, contractors and agents who need to know that information in order to operate, develop or improve our services. These individuals are bound by confidentiality obligations subject to enforcement, if they fail to meet these obligations.

DATA INTEGRITY

Essex processes personal information only for the purposes for which it was collected and in accordance with this Policy or any applicable service-specific privacy notice. Essex reviews its data collection, storage and processing practices to ensure that only personal information needed to provide or improve our services is collected, stored and processed. Essex takes reasonable steps to ensure that the personal information processed is accurate, complete, and current, notwithstanding that Essex depends on Users to update or correct personal information whenever necessary.

ACCESSING AND UPDATING PERSONAL INFORMATION

Essex makes good faith efforts to provide Users with access to their personal information, either to correct this data if it is inaccurate or to delete such data at the User’s request if it is not otherwise required to be retained by law or for legitimate business purposes. When a User requests to correct or delete personal information, Essex asks the individual User to identify themselves and the specific information requested to be accessed, corrected or removed, before processing such requests. Essex may decline to process requests that are unreasonably repetitive or systematic, require disproportionate technical effort, jeopardize the privacy of others, or would be extremely impractical, or for which access is not otherwise required. In any case where Essex provides information access and correction, Essex will perform this service free of charge, except if doing so would require a disproportionate effort.

COMPLIANCE

Essex regularly reviews its compliance with this Policy to ensure that it is compliant with the Personal Information Protection Act, SA 2003, c P-6.5, and the Internet Sales Contract Regulation, Alta Reg 81/2001. Please feel free to direct any questions or concerns regarding this Policy or Essex’s treatment of personal information by contacting Essex through this Website.

GENERAL PROVISIONS

The Essex Agreements constitute the entire agreement and understanding of the parties in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.

This Terms of Use does not create, and shall not be construed by the parties or any third person as creating, any agency, partnership, joint venture, or employment relationship between any User and us. Instead, the relationship of the parties under this Terms of Use shall be solely that of independent contractors.

Neither party hereto shall be liable to the other for any delay in or failure to perform any of its obligations hereunder to the extent performance is prevented or delayed due to causes beyond its control, including, but not limited to, failures of electronic or mechanical equipment or of the Internet or other telecommunications, computer viruses, unauthorized access, forces of nature, war, terrorism, fire, severe weather or other natural disasters, or interference or hindrance by any governmental authority.

Our failure to exercise or enforce any right or provision of this Terms of Use, or any delay on our part in doing so, will not constitute our waiver of such right or provision.

All of the terms, agreements, covenants, representations, warranties, and conditions of this Terms of Use are binding upon, and enure to the benefit of and are enforceable by and binding upon, the parties and their respective successors and permitted assigns. This Terms of Use may not be assigned by You without our prior written consent.

If any provision of this Terms of Use is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be struck and the remaining provisions shall be fully enforceable.

Headings are for reference purposes only and shall not affect the meaning or interpretation of this Terms of Use.

You agree that every other User with whom You interact on this Website is an intended third party beneficiary of this Terms of Use.

In the event that Essex has to file suit against You or otherwise participate in any judicial or other legal proceeding to enforce our rights and your obligations under this Terms of Use, Essex shall be entitled to recover, and You shall be obligated to pay, in addition to all damages and other forms of relief or recovery awarded to Essex, our legal fees on a solicitor and client full indemnity basis, expenses (including without limitation the expense associated with retaining and employing expert witnesses) and all costs of court.

The laws governing this Terms of Use shall be the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to any conflict of law rules. You agree that any action at law or in equity arising out of or relating to this Terms of Use shall be filed only in the judicial centre of Calgary, Alberta, Canada, and that You hereby consent and submit to the exclusive jurisdiction and venue of such courts. Purchasers and Vendors are responsible for compliance with all applicable statutes, laws, rules, and regulations.

You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Website Service in a manner that sends more request messages to the Essex servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. Notwithstanding the foregoing, Essex grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of creating publicly available searchable indices of the materials, but not caches or archives of such materials. Essex reserves the right to revoke these exceptions either generally or in specific cases. You agree not to collect or harvest any personally identifiable information, including account names, from the Website.

All Items listed on this Website are sold “as is, where is” with no warranties of any kind, express or implied, including, but not limited to, implied warranties of merchantability or fitness for a particular purpose, unless otherwise expressly set forth listing such Item and labeled as a “Warranty”, and in each case the warranty is the warranty of the Vendor and not that of Essex.

The parties have expressly requested and required that this Terms of Use and all other related documents be drawn up in the English language. Les parties conviennent et exigent expressement que ce Contrat et tous les documents qui s’y rapportent soient redigés en anglais.