Terms of Use (Canada)

Welcome to the website of NextGear Capital, Inc. and NextGear Capital Corporation (individually and collectively, the “Company“, “we” or “us“). The following terms and conditions (these “Terms of Use”), govern your access to and use of the Company website located at www.nextgearcapital.com (together with any content, functionality or services offered on or through such website, the “Website”).  Please read these Terms of Use carefully before you start to use the Website. By visiting, using or otherwise accessing the Website, you accept and agree to be bound and abide by these Terms of Use and our Privacy Policy, which is incorporated herein by reference. If you do not agree to these Terms of Use or the Privacy Policy, you must not access or use the Website.

Changes to Terms of Use

We may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when we post them, and apply to all access to and use of the Website thereafter. Your continued use of the Website following the posting of revised Terms of Use means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

Accessing the Website and Account Security

We reserve the right to withdraw or amend the Website, and any service or material we provide on the Website, in our sole discretion and without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to all or some parts of the Website.

To access the Website or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Website that all the information you provide on the Website is correct, current and complete. You agree that all information you provide to register with the Website or otherwise, including through the use of any interactive features on the Website, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Website or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms of Use, or if you or your company have breached or are in default under any loan documents or other agreements with the Company.

Intellectual Property Rights

The Website and its entire contents, features and functionality (including all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by Canadian and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

You must not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on the Website, except as follows:

  • Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials.
  • You may store files that are automatically cached by your Web browser for display enhancement purposes.
  • You may print or download one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
  • If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.

You must not:

  • Modify copies of any materials from the Website.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Website.

No right, title or interest in or to the Website or any content on the Website is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Website not expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark and other laws.

Trademarks

The Company name, the Company logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on the Website are the trademarks of their respective owners.

Prohibited Uses

You may use the Website only for lawful purposes and in accordance with these Terms of Use. You agree not to use the Website:

  • To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter” or “spam” or any other similar solicitation.
  • To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).

Additionally, you agree not to:

  • Use the Website in any manner that could disable, overburden, damage, or impair the Website or interfere with any other party’s use of the Website, including their ability to engage in real time activities through the Website.
  • Use any robot, spider or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website.
  • Use any manual process to monitor or copy any of the material on the Website or for any other unauthorized purpose without our prior written consent.
  • Use any device, software or routine that interferes with the proper working of the Website.
  • Introduce any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Website, the server on which the Website is stored, or any server, computer or database connected to the Website.
  • Attack the Website via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Website.

Monitoring and Enforcement; Termination

  • We have the right to terminate or suspend your access to all or part of the Website for any or no reason, including without limitation, any violation of these Terms of Use. Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Website.

Reliance on Information Posted

The information presented on or through the Website is made available solely for general information purposes. We do not warrant the accuracy, completeness or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such materials by you or any other visitor to the Website, or by anyone who may be informed of any of its contents. Notwithstanding the foregoing, our dealer customers may in all cases rely upon and assume the accuracy of any information set forth on the Finance Program, Rate, Fee and Term Schedule that is provided to such dealer customer through its dealer account page that is made available through the Website.

The Website may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, aggregators or reporting services. All statements or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.

Changes to the Website

We may update the content on the Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material. Notwithstanding the foregoing, any information that may be set forth on a Finance Program, Rate, Fee and Term Schedule that is provided to you through your dealer account page shall be deemed current and up-to-date.

Links from the Website

If the Website contains links to other websites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those websites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to the Website, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.

Disclaimer of Warranties

IF YOU RELY ON THE WEBSITE OR ANY CONTENT, PRODUCT OR SERVICE MADE AVAILABLE THROUGH THE WEBSITE, YOU DO SO AT YOUR OWN RISK. YOU UNDERSTAND THAT THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, INACCURACIES OR OTHER PROBLEMS WITH THE WEBSITE OR THE CONTENT, PRODUCTS OR SERVICES MADE AVAILABLE, PUBLISHED OR PROMOTED ON OR THROUGH THE WEBSITE. THE WEBSITE IS PROVIDED TO YOU “AS-IS” AND “AS AVAILABLE BASIS”. NEITHER WE NOR ANY OF OUR AFFILIATES, AGENTS OR LICENSORS MAKE ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED AND INCLUDING, WITHOUT LIMITATION WITH RESPECT TO THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE WEBSITE OR ANY CONTENT, PRODUCT OR SERVICE MADE AVAILABLE, PUBLISHED OR PROMOTED ON OR THROUGH THE WEBSITE (OR THAT MAY BE REFERRED TO OR ADVERTISED ON OR THROUGH THE WEBSITE), NOR DO WE OR THEY GUARANTEE THAT THE WEBSITE WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT THE WEBSITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMERS MAY NOT APPLY.

Indemnification and Limitation on Liability

YOU AGREE TO INDEMNIFY AND HOLD HARMLESS US, OUR AFFILIATES, OUR SERVICE PROVIDERS AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PRINCIPALS (PARTNERS, SHAREHOLDERS OR HOLDERS OF AN OWNERSHIP INTEREST, AS THE CASE MAY BE), EMPLOYEES, OWNERS, REPRESENTATIVES, AGENTS AND LICENSEES, AGAINST ANY AND ALL CLAIMS, JUDGMENTS, LOSSES, DAMAGES, DEMANDS, PAYMENTS, FINES, COSTS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEE AND COURT COSTS), LIABILITIES AND RECOVERIES OF WHATEVER NATURE, THAT ARISE OUT OF YOUR USE OF OR ACCESS TO THE WEBSITE OR ANY PORTION THEREOF, OR ANY CONTENT OR OTHER INFORMATION THAT YOU MAY ACCESS ON OR THROUGH THE WEBSITE.

UNDER NO CIRCUMSTANCES WILL WE OR OUR AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, ARISING OUT OF YOUR USE OF THE WEBSITE OR ANY CONTENT, PRODUCT OR SERVICE THAT MAY BE ADVERTISED OR PROMOTED ON THE WEBSITE, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY OR OTHER DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA), UNDER ANY THEORY OF LIABILITY (WHETHER ON A CONTRACTUAL OR EXTRACONTRACTUAL BASIS, TORT, STRICT LIABILITY OR ANY THEORY OR LAW OR EQUITY), EVEN IF WE OR THEY ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. YOU FURTHER AGREE THAT THE AGGREGATE LIABILITY OF US AND OUR AFFILIATES, AGENTS AND LICENSORS, IF ANY, ARISING OUT OF A LEGAL CLAIM OF ANY KIND RELATING TO THE WEBSITE OR THESE TERMS OF USE WILL NOT EXCEED ONE THOUSAND AND NO/100 DOLLARS ($1,000).

Miscellaneous

These Terms of Use and all other elements of the relationship between the Company and each User relating to the Website shall be construed in accordance with the laws of the Province of Ontario and the applicable laws of Canada, without regard for its conflict of law principles. By using the Website, you submit to the personal jurisdiction and venue of the courts of the City of Toronto, Province of Ontario, Canada, and agree that any and all claims or disputes relating to the Website or your use thereof, to the extent initiated by you against the Company or its affiliates, shall be brought in the courts of the City of Toronto, Province of Ontario, Canada. Further, you expressly waive any objection based upon lack of personal jurisdiction, improper venue or forum non conveniens with respect to any action commenced against you in such forum by the Company. You acknowledge and agree that the Company and its affiliates reserve the right to initiate and prosecute any action against you in any court of competent jurisdiction, and you consent to such forum as the Company or its affiliates may elect.

ANY LEGAL OR OTHER PROCEEDING COMMENCED BY OR ON YOUR BEHALF UNDER THESE TERMS OF USE OR IN CONNECTION WITH YOUR USE OF THE WEBSITE SHALL TAKE THE FORM OF AN INDIVIDUAL ACTION OR PROCEEDING (AND NOT OF A CLASS ACTION OR PUTATIVE CLASS ACTION OR OF A COLLECTIVE, REPRESENTATIVE OR OTHER SIMILAR ACTION OR PROCEEDING). CLASS ACTIONS OF ANY KIND (WHETHER PURSUED THROUGH THE COURTS ARE OTHERWISE) ARE NOT PERMITTED. YOU ACKNOWLEDGE AND AGREE THAT YOU MAY BRING CLAIMS AGAINST US AND OUR AFFILIATES AND RELATED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING. BY VISITING, USING OR OTHERWISE ACCESSING THE WEBSITE, YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION OR OTHER SIMILAR REPRESENTATIVE ACTION OR PROCEEDING.

Relationship to Other Agreements

Notwithstanding anything to the contrary in these Terms of Use, you acknowledge that these Terms of Use shall be supplemental and in addition to any terms and conditions that may be set forth in any loan documents or other agreements that you may enter into with the Company, and these Terms of Use shall not in any way be deemed to limit or reduce any right that the Company may have under any loan document or other agreement that it may have in place with you or your company. In the event of any conflict between these Terms of Use and any loan document that you may enter into with the Company (or that may already be in place between you and the Company), the provision of such loan document shall prevail and be deemed controlling.

The parties agree that these Terms of Use and all documents and/or agreements related hereto shall be drafted in the English language only. Les parties aux présentes conviennent que les présentes ainsi que tous les documents et (ou) ententes s’y rattachant soient rédigés en langue anglaise seulement.

Contact Information

To ask questions or comment about these Terms of Use, marketing@nextgearcapital.com.

Effective Date: March 2, 2015.

MTL01: 3266886: v3