AUTOPAL SERVICE AGREEMENT
FOR SOFTWARE AS A SERVICE (SAAS)
THIS SERVICE AGREEMENT (the "Agreement"), dated effective as of Customer's Activation Date, is by and between AutoPal Software, LLC, a Utah limited liability company ("AutoPal"), and the customer whose name and contact information is set forth in the Contract Documents ("Customer").
AUTHORIZED USERS: IF YOU ARE AN AUTHORIZED USER OF THE AUTOPAL SERVICE AND SOFTWARE, THE LIMITATIONS AND RESTRICTIONS IN THIS AGREEMENT APPLY TO YOU. READ THIS END USER LICENSE AGREEMENT BEFORE USING THIS SOFTWARE, ESPECIALLY SECTIONS 3.3 AND 3.4. BY CLICKING "YES" BELOW OR BY USING THE SOFTWARE, YOU INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, CLICK "NO" BELOW AND DO NOT USE THE SOFTWARE.
AutoPal has developed certain Software, as defined below, which Customer desires to use for its internal business purposes. Customer will be provided access to the Software as a web-based application.
In consideration of the mutual covenants and agreements contained herein, the sufficiency of which is hereby acknowledged, Customer and AutoPal agree as follows:
  1. DEFINITIONS.
    1. "Activation Date" means the date that Customer first has access to the Software for its productive use, after the required activation fees have been paid.
    2. "Add-on Products" means separately priced, optional add-on software, Software features and products that are offered as part of the AutoPal Service.
    3. "Administrator User" means Customer's primary contact person with AutoPal, who has full access to the Software and has the right and ability to control access for all other Authorized Users (i.e., can grant or restrict Software access for other Authorized Users).
    4. "Authorized User(s)" means any person that Customer allows to have access to the Software and Customer's account, including Customer's employees and staff and any third parties that Customer allows to view or use the AutoPal Service.
    5. "AutoPal Service" means a web-based service that is hosted on servers of AutoPal or its agents, through which Customer is provided access to the Software via the Internet. The specific Software and services provided to Customer as part of the AutoPal Service are listed in the Contract Documents.
    6. "Confidential Information" means all proprietary and confidential information exchanged by the parties, including the Software, trade secrets; the substantive terms of this Agreement; a party's non-public business and financial information; any written materials marked as confidential and any other information, including visual or oral information, which reasonably should be understood to be confidential. Confidential Information does not include information that the receiving party can prove: (a) is now or later becomes generally available to the public without fault of the receiving party; (b) was rightfully in the receiving party's possession prior to its disclosure by the disclosing party; (c) is independently developed by the receiving party without the use of any Confidential Information of the disclosing party; or (d) is obtained by the receiving party without obligation of confidentiality from a third party who has the right to disclose it. The receiving party may disclose Confidential Information to the extent required under a judicial or legislative order or proceeding; provided that the receiving party gives the disclosing party, if feasible, prior notice and an opportunity to respond or object to the disclosure.
    7. "Contract Documents" means this Agreement, the welcome/activation email from AutoPal to Customer listing the services being purchased by Customer, the Pricing Table, and the proof of electronic signature from Docusign or a similar service.
    8. "Customer Data" means all information and data input by Customer and its Authorized Users into the Software, including all data associated with Customer and its clients.
    9. "Documentation" means the user instructions and/or user manual for the AutoPal Service, which are in electronic format.
    10. "Modifications" means bug fixes, updates, upgrades, enhancements, new versions, and other modifications to the Software and AutoPal Service that are provided by AutoPal to AutoPal's SaaS customer base as part of AutoPal's support and maintenance services.
    11. "Pricing Table" means AutoPal's pricing table for various products and services, as included in Customer's Contract Documents, which may be updated by AutoPal from time to time.
    12. "Support Addendum" means the Support and Maintenance Services Addendum attached as Addendum A.
    13. "Software" means AutoPal's computer software that Customer is licensed to access and use as part of the AutoPal Service, as specifically listed in the Contract Documents, including all systems, modules, web pages, websites, databases, software code, technology, etc., provided by AutoPal. "Software" includes all Modifications to such Software, and all Documentation and updates thereof.
  2. FREE TRIAL. If so specified in the Contract Documents, AutoPal will make the AutoPal Service available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer has registered or is registering to use the AutoPal Service, or (b) the start date of any purchased AutoPal Service ordered by Customer. Additional trial terms and conditions may appear on the trial registration web page or documentation. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY DATA CUSTOMER ENTERS INTO THE AUTOPAL SERVICE DURING THE FREE TRIAL PERIOD IS TEMPORARY ONLY. CUSTOMER WILL BE REQUIRED TO RE-ENTER SUCH DATA TO ITS PAID ACCOUNT ONCE CUSTOMER PURCHASES A SUBSCRIPTION TO THE AUTOPAL SERVICE. DURING THE FREE TRIAL PERIOD THE AUTOPAL SERVICE IS PROVIDED "AS IS" WITHOUT ANY AUTOPAL WARRANTIES OR INDEMNITIES OF ANY KIND, NOTWITHSTANDING SECTION 8.
  3. LICENSE OF AUTOPAL SERVICE AND SOFTWARE
    1. AutoPal Service. AutoPal grants Customer the non-exclusive right and license to access and use the AutoPal Service, including the Software, subject to the terms and conditions of this Agreement. AutoPal will use, operate, and/or make available applicable software, hardware, network, systems, platforms, and/or other technologies and expertise reasonably required to provide the AutoPal Service to Customer. The AutoPal Service may be hosted on AutoPal's servers or, at AutoPal's option, on the servers of a third party that is in the business of hosting web-based applications. AutoPal hereby grants to Customer, for the internal use of Customer only, a personal, non-transferable and non- exclusive license to use the Documentation provided hereunder to support its authorized use of the AutoPal Service. During the term of this Agreement, Customer may add available Add-on Products or services to the AutoPal Service by purchasing them from the AutoPal Store, located in the Software at My Account/AutoPal Store.
    2. Access and URL. During the term of this Agreement, provided that Customer has paid all fees due and owing and is in compliance with the terms of this Agreement, Customer and its Authorized Users will be able to access the AutoPal Service and use the Software. AutoPal will provide a URL for a website for use by Customer in the form of a sub-domain of AutoPal's registered URL. If Customer chooses to sub-mask or forward a different URL to the URL provided by AutoPal, then Customer is solely responsible to independently purchase, retain ownership of and uphold terms and conditions of such URL.
    3. Authorized Users. Authorized Users are granted a nonexclusive, non-transferable right to use the AutoPal Service and Software under the license rights granted to the Customer. However, AutoPal's commitments, representations, and indemnities set forth in this Agreement apply only to Customer. The Software is made available to Authorized Users on an "AS IS" basis, and AutoPal disclaims any and all liability to Authorized Users. An Authorized User's right and license to use the AutoPal Service and Software will terminate automatically (i) if this Agreement terminates for any reason, or (ii) if the Authorized User's employment or engagement with Customer terminates for any reason. Customer or AutoPal may also terminate an Authorized User's rights under this Agreement at any time if the Authorized User breaches the terms of this Agreement.
    4. Restrictions. Customer and its Authorized Users will comply with the following restrictions and limitations:
      1. not copy the content on the AutoPal Service website or the Documentation, other than Customer Data;
      2. not modify, alter, create derivative works of, reverse engineer, decompile or disassemble the Software, or modify the Documentation;
      3. not sublicense, distribute or sell the AutoPal Service or Software or its license thereto, or allow any third parties to use or access the AutoPal Service or Software in a "service bureau" mode;
      4. comply with all applicable federal, state and local laws in connection with this Agreement and its use of the AutoPal Service; and
      5. take all reasonable precautions to prevent Customer's employees and consultants from making unauthorized copies of the Software or misusing the Software in any way that would constitute a breach of this Agreement.
      If Customer discovers any such problems, it will promptly notify AutoPal and take commercially reasonable actions to resolve the problem, including any actions requested by AutoPal, as soon as reasonably possible. AutoPal reserves the right to audit Customer's use of the Software, upon notice, to confirm that Customer's use of the Software is in compliance with the terms of this Agreement.
    5. Administrative User. Customer will assign one Authorized User to be its Administrative User. An authorized representative of Customer will notify AutoPal of the name and contact information for the Administrative User, and any changes to such information. The Administrative User is given administrative access to Customer's account on the Software and can grant or restrict Software access for other Authorized Users. The Administrative User is also the primary contact person for Customer with AutoPal, and such person's instructions and requests to AutoPal will have priority over the instructions or requests of any other employee or representative of Customer.
    6. Support and Maintenance. As part of the AutoPal Service, and for the fees set forth in the Contract Documents, AutoPal will provide the support and maintenance services, including Modifications, described in the attached Support Addendum. The Support Addendum may be updated and modified from time to time by AutoPal in its sole discretion. The AutoPal Service is subject to periodic updates and changes from time to time at AutoPal's sole discretion, including the addition, modification or deletion of any features or functions in the Software.
    7. Business Opportunities for Customer. AutoPal may from time to time notify Customer of services, products, lending or other business opportunities arising out of AutoPal's business, including its dealings with other customers and vendors. In each case Customer will have the right to elect whether or not to participate in such transaction or to receive additional information, on an "opt-in" basis.
  4. Ownership.
    1. AutoPal Rights. AutoPal retains all right, title and interest, including without limitation all patents and patent rights, trademarks, service marks, copyrights, trade secrets and other proprietary rights, in and to the AutoPal Service, including the Software, Documentation and all content provided by AutoPal as part of the AutoPal Service, including any derivative works, subject to the licenses set forth in this Agreement. AutoPal specifically reserves all rights not expressly granted to Customer in this Agreement.
    2. Customer Data. Customer owns all right, title and interest in and to Customer Data, subject to AutoPal's rights as set forth below. AutoPal will use commercially reasonable efforts to safeguard the security, confidentiality and integrity of Customer Data. Customer grants AutoPal the right to use, reproduce, modify and distribute Customer Data as necessary or appropriate to transmit, store, encrypt, calculate, and analyze the Customer Data, create and distribute reports, and to provide, modify and improve the AutoPal Service and Software. To the extent permitted by applicable law, Customer also grants AutoPal the right to share Customer Data with third parties in connection with AutoPal's general activities of conducting business, including providing Customer with possible solutions to their business needs, and developing and providing third party integrations with the Software (pulling credit, decoding VINs, automated telephone calls, merchant services, etc.). AutoPal also has the right to collect, aggregate and remove all personally identifiable information from Customer Data, and to retain, use and disclose such de- identified data (the "De-Identified Data") for any purpose permitted by law, including without limitation benchmarking, product and service development, development of best practices, making it available to third parties, and research and statistical purposes without reimbursement or notification to, or consent or authorization from, Customer. AutoPal shall own all De-Identified Data, including any calculations, functions, features, or other modifications of the Customer Data, excluding the Customer Data in its raw form.
  5. CUSTOMER OBLIGATIONS.
    1. Obligations. Customer will
      1. be responsible for its Authorized Users' compliance with this Agreement;
      2. be responsible for the accuracy, quality and legality of Customer Data and of the means by which Customer acquired such data;
      3. use commercially reasonable efforts to prevent unauthorized access to or use of the AutoPal Service, and notify Company promptly of any such unauthorized access or use;
      4. use the AutoPal Service only in accordance with its Documentation and applicable laws and government regulations;
      5. not make the AutoPal Service available to anyone other than Authorized Users,
      6. not use the AutoPal Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights,
      7. not use the AutoPal Service to store or transmit any virus, Trojan, worm, or other malicious or harmful computer software code or routines,
      8. not interfere with or disrupt the integrity or performance of the AutoPal Service or third party data contained therein, and
      9. not attempt to gain unauthorized access to the AutoPal Service or its related systems or networks.
    2. Usage Limitations. The Service may be subject to other limitations, such as, for example, limits on storage space, on the number of calls Customer are permitted to make against Company's REST API (application programming interface), and, for any portion of the Service that enables Customer to provide public websites, on the number of page views by visitors to those websites.
    3. Security. Customer is solely responsible for the security of data residing on server(s) owned or operated by Customer or a third party designated by Customer (e.g., a web hosting company, processor, or other service provider).
  6. TERMS OF PAYMENT
    1. Fees & Costs: All pricing and transactions between AutoPal and Customer will be in U.S. Dollars. Customer is responsible for any and all fees incurred, as set forth in Addendum B and in the Pricing Table, which may include activation, monthly subscription, usage, custom programming, and technical support fees. AutoPal charges a separate price for Add-on Products. After the Initial Term, the Pricing Table is subject to modification by AutoPal from time to time, effective upon written notice to Customer or posting on AutoPal's website(s), unless Customer and AutoPal agree to lock in this Agreement and pricing for an additional set term. All fees are charged at the time of purchase, subscription, usage, or approval of charge, as applicable to that particular type of fee. All fees are non-refundable.
    2. Billing Method. All software subscription accounts are required to either pay in advance for monthly core, subscription, usage, and other fees, or be enrolled for automatic monthly billing with a valid payment method. The primary payment method that is on file will be automatically processed for payment on the 1st day of every month. Customer hereby authorizes AutoPal to collect this automatic payment, using the payment method selected by Customer, for the balance due each month. Customer's activation payment method will automatically be set to the automatic monthly billing setting upon activation, unless Customer changes that setting. Customer may manage this payment method at the following location in the Software: My Account/Payment Methods.
    3. Late Fees. If Customer's account holds a balance due after the due date (which is the 1st day of each month), Customer's account will be assessed a five percent (5%) late fee on the total outstanding balance on the account, with a minimum of $30.
    4. Remedies for Nonpayment: If Customer's account is not current then, with the exception of usage fees (see Addendum B), AutoPal has the option and right to require payment on the account by partially or fully suspending and blocking Customer's and its Authorized Users' access to the Software until all past-due amounts are paid. Customer's account may be assessed additional fees for blocking or unblocking the account due to late payment, and Customer hereby consents to this collection practice.
    5. Taxes. Customer is responsible for all applicable taxes on the fees paid by Customer to AutoPal, including, without limitation, any and all sales, use, value-added and personal property taxes, (excluding taxes on AutoPal's net income).
  7. CONFIDENTIAL INFORMATION. The party receiving Confidential Information will not disclose it to any person or use it for any purpose, except as expressly permitted by this Agreement. The receiving party may disclose Confidential Information only to its employees and contractors who need to know such information and who are bound to keep such information confidential. The receiving party will give Confidential Information at least the same level of protection as it gives its own confidential information of similar nature or sensitivity, but not less than a reasonable level of protection. The receiving party will maintain Confidential Information in a safe and secure place and will not copy such information, except to the extent reasonably necessary for the purposes of this Agreement.
  8. WARRANTIES AND LIMITATION OF LIABILITIES
    1. Customer Warranties. Customer represents and warrants that:
      1. Customer has the necessary right, power and ability to execute this Agreement and to perform Customer's obligations herein;
      2. no authorization or approval from any third party is required in connection with Customer's execution, delivery or performance of this Agreement;
      3. this Agreement constitutes a legal, valid and binding obligation, enforceable against Customer in accordance with its terms;
      4. Customer's obligations under this Agreement do not violate any law or breach any other agreement to which Customer is bound;
      5. all representations and statements made by Customer in this Agreement, or in any other document relating hereto by Customer or on Customer's behalf, are true, accurate and complete in all material respects;
      6. Customer is engaged in a lawful business that includes the sale of products and/or services, including the underwriting, funding, and servicing of loans/leases, and Customer is duly licensed to conduct such business under the laws of all jurisdictions in which Customer conducts business; and
      7. Customer will comply, at its sole expense, with all laws, policies, guidelines, regulations, ordinances or rules applicable to Customer and this Agreement.
    2. AutoPal Warranties. AutoPal represents and warrants that:
      1. AutoPal has the necessary right, power and ability to execute this Agreement and to perform AutoPal's obligations herein;
      2. no authorization or approval from any third party is required in connection with AutoPal's execution, delivery or performance of this Agreement;
      3. this Agreement constitutes a legal, valid and binding obligation, enforceable against AutoPal in accordance with its terms; and
      4. AutoPal will use commercially reasonable efforts to allow Customer to access the AutoPal Service seven (7) days per week, twenty-four (24) hours per day with a goal of ninety-eight percent (98%) reliability to the AutoPal Service, excluding downtime (i) scheduled in advance for maintenance on a periodic basis, or (ii) due to faults caused by Customer or Customer's system, or (iii) due to other causes outside of the reasonable control of AutoPal, including without limitation malfunction or cessation of Internet services by any third party network or ISP.
    3. Limitation of Warranties; Disclaimers. AutoPal uses diligent efforts to ensure that the Software and the AutoPal Service are available, uninterrupted, and provide timely and secure functionality. However, AutoPal does not warrant or guarantee that the Software or the AutoPal Service will be uninterrupted, error-free, or free from any potential or actual security threats. Except as expressly set forth above in this Section 8, the AutoPal Service and Software, and other services of AutoPal, are provided to Customer and its Authorized Users on an "AS IS, AS AVAILABLE" basis. AUTOPAL AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITH RESPECT TO MERCHANTABILITY, TITLE, NON-INFRINGEMENT OR FITNESS OF THE AUTOPAL SERVICE OR SOFTWARE FOR ANY PARTICULAR PURPOSE OR INTENDED USE. AUTOPAL MAKES NO WARRANTIES WHATSOEVER AND IS NOT LIABLE FOR ANY LOSS OR DAMAGE THAT MAY BE INCURRED BY CUSTOMER AS A RESULT OF USING ANY THIRD PARTY SERVICE OR SOFTWARE, EVEN IF LINKED TO OR INTEGRATED IN THE AUTOPAL SERVICE OR SOFTWARE. AutoPal is not responsible or liable for damage, malfunction, or performance failures resulting from misuse, physical abuse, improper operation, the environment or other causes beyond AutoPal's exclusive control. No employee of AutoPal or any third party has the right to make any representation or warranty regarding the AutoPal Service, except as expressly set forth in this Agreement.

      Without limiting the foregoing, AutoPal does not make any representation, warranty or guarantee as to the results that may be obtained from Customer's use of the AutoPal Service or Software or as to the accuracy or reliability of any information therein, or recommendations or information offered by any AutoPal personnel. Customer expressly acknowledges and agrees that Customer's use of the AutoPal Service does not in any way guarantee the security or reliability of Customer's website. Customer understands and agrees that AutoPal shall bear no risk with respect to Customer's sale, products or services, including the making of loans and/or leases, without limitation, any risk associated with the security of Customer's website, credit card fraud or chargebacks, or any risk associated with Customer's failure to register with the appropriate governmental agencies or obtaining the appropriate licenses to conduct business, including charging interest, and finance charges, or any other regulatory requirements. AutoPal provides software products to customers that operate in many regulated spaces. AutoPal is not responsible and does not assume any obligations for any regulatory compliance or disclosures required of Customer or Customer's clients. AutoPal is not responsible for any customized forms that Customer creates or uses. AutoPal's loan servicing Software has many features allowing Customer to manipulate loans, such as Roll Schedule, Roll Payment, Reg Z, Smooth, Force, Change Due Date, Advance/Credit, and Loan Modification. It is SOLELY Customer's responsibility and liability to ensure that its operations are in compliance with law and regulation and that its disclosures are complete and accurate.

      Customer expressly agrees that AutoPal shall not be liable for any loss or damages whatsoever arising from or caused by (i) Customer's failure to properly download, activate, integrate or manage the Software; (ii) any fraudulent transactions processed through Customer's payment gateway account(s); (iii) disruption of the AutoPal Service; (iv) actions or inactions of any third party, including without limitation, merchant service providers, payment processors, bank URL support, email systems; or (v) any person's unauthorized access to Customer Data (including credit card number and other personally identifiable information), transaction data or personal information.
    4. Limitations of Liability. IN NO EVENT WILL AUTOPAL, ITS AFFILIATES OR LICENSORS BE LIABLE FOR LOST DATA, LOST PROFITS OR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE FURNISHING, PERFORMANCE, OR USE OF ANY SOFTWARE OR SERVICES PROVIDED FOR IN THIS AGREEMENT. AUTOPAL'S TOTAL AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF THE CLAIM(S), INCLUDING INDEMNIFICATION, WILL NOT IN ANY EVENT EXCEED THE AMOUNTS PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE ONE MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. This limitation shall apply whether or not the alleged breach by AutoPal is a breach of condition or fundamental term, or a fundamental breach.
    5. Legal Compliance; Use of AutoPal Forms. Customer acknowledges that AutoPal's personnel are not financial experts, attorneys, accountants or experts on the applicable laws of any state. AutoPal personnel may consult with Customer's Authorized Users and provide assistance and recommendations, but Customer is solely responsible for compliance with any applicable laws, regulations and professional standards. This includes, without limitation, whether it is legal or appropriate, under the laws and regulations that govern Customer, to use any form documents provided by AutoPal for use in connection with the AutoPal Service ("Forms"), whether generic, standard Forms or Forms that have been customized by AutoPal and/or Customer for Customer's use. AutoPal provides Forms as a convenience to customers but Customer is responsible for determining whether it is legal or appropriate to use any Form in Customer's business, in unmodified or modified form. AutoPal is NOT liable for any claims whatsoever by Customer or any third party arising out of or related to the content or use of any Form. THE FINAL DECISION ABOUT ANY ASPECT OF CUSTOMER'S BUSINESS, INCLUDING WITHOUT LIMITATION COMPLIANCE WITH LAWS IN CONNECTION WITH CUSTOMER'S USE OF THE SOFTWARE AND AUTOPAL SERVICE, IS THE SOLE AND EXCLUSIVE RESPONSIBILITY OF CUSTOMER.
  9. INDEMNIFICATION.
    1. By AutoPal. AutoPal will defend Customer against any and all third party claims or suits (each a "Claim") that the AutoPal Service infringes any third party U.S. patent that has issued as of the effective date, copyright or trademark or misappropriates any trade secret, and pay any liabilities, damages, costs and expenses (including reasonable attorneys' fees) finally awarded therein or paid in settlement. AutoPal may, at its option and expense, participate in the defense of the Claim with counsel of its own choosing. If the AutoPal Service is finally held or believed by AutoPal to infringe, AutoPal shall use reasonable efforts to obtain a license under the rights that have been infringed, to modify the AutoPal Service so it is noninfringing or to provide to Customer a substitute service and/or software that is noninfringing; provided that if such options are not commercially reasonable, AutoPal may terminate the applicable AutoPal Service or this Agreement upon written notice to Customer. AutoPal shall have no liability for infringement based on modification of the AutoPal Service by any party other than AutoPal or the combination or use of the AutoPal Service with any software, equipment, product or process not furnished by AutoPal, if use of the AutoPal Service alone and in their current, unmodified form would not have been an infringement. THIS SECTION STATES AUTOPAL'S ENTIRE OBLIGATION WITH RESPECT TO ANY CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
    2. By Customer. If any action is instituted by a third party (including any client or business partner of Customer) against AutoPal (a) arising out of or relating to Customer's use of the AutoPal Service or Software, including without limitation (i) any breach or alleged breach by Customer of any of its representations, warranties, or obligations set forth in this Agreement; (ii) any damage or loss caused by negligence, fraud, dishonesty or willful misconduct by Customer or its employees, agents or clients; or (iii) any claims associated with the provision of services by Customer to its clients; or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of AutoPal and shall pay all damages attributable to such claim which are finally awarded against AutoPal or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 9.1 above or arises out of a breach of this Agreement or misconduct by AutoPal.
    3. Indemnification Procedure. Any party that is seeking to be indemnified under this Section 9 (an "Indemnified Party") for a third party Claim must (i) promptly notify the other party (the "Indemnifying Party") of the Claim; and (ii) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party's prior approval of any such settlement or compromise only if (a) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (b) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (c) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party's assumption of the defense of such Claim, the Indemnified Party will reasonably cooperate with the Indemnifying Party in such defense, at the Indemnifying Party's expense.
  10. TERM AND TERMINATION
    1. Term. This Agreement will remain in effect for as long as Customer has access to the AutoPal Service and Software. The initial contract term is set forth in the Contract Documents (the "Initial Term"). After the Initial Term, either party may terminate this Agreement at any time, with or without cause, upon ninety (90) days prior written notice to the other party.
    2. Termination of Subscription or Removal of Services. If Customer wishes to terminate its license to any Add-on Products, or remove services from its AutoPal Service subscription, Customer must give thirty (30) days' prior written notice by email to billing@autopalsoftware.com. If Customer wishes to terminate its entire subscription (i.e., its license to the core Software as well as all Add-on Products), Customer must give ninety (90) days' prior written notice by email to billing@autopalsoftware.com. Other forms of notice, including emails sent to other AutoPal addresses, departments or personnel, including AutoPal service, do not qualify as notice to terminate or modify the AutoPal Service or any licenses.
      1. Add-on Product Subscription Cancellation: All Add-on Products are separately priced, with a month-to-month subscription fee. Customer must provide thirty (30) days' prior written notice of termination of its licenses to such Add-on Products, as outlined above in this section. Customer is responsible for all fees associated for the product subscription during that thirty day period.
      2. Termination Fees: If Customer terminates its entire subscription to the AutoPal Service or this Agreement (i.e., its license to the core Software) before the end of the Initial Term, other than for cause under Section 10.3, then, within thirty (30) days of the date of termination, Customer is required to pay AutoPal the entire balance of Customer's payment obligations for the remainder of the Initial Term, as well as any usage fees or other outstanding fees on Customer's account at the time of termination. The subscription fees for the remaining period of the Initial Term shall be calculated as the highest core tier that Customer attained, multiplied by the remaining number of 1st days of the month that remain during the Initial Term (as all reoccurring billing occurs on the 1st day of each month). The foregoing fees do not apply to Customer's termination of its licenses to Add-on Products, which may be purchased or terminated at any time, subject to the terms of this Agreement.
    3. Termination for Cause. Either party may terminate this Agreement if the other party commits a material breach of this Agreement and does not cure such breach within thirty (30) days of written notice specifying such breach (except for breaches by a party of its confidentiality obligations or payment obligations, for which the cure period will be ten (10) business days after receipt of written notice of such breach, including by an on- screen non-payment notification to Customer within the Software). AutoPal may also terminate or suspend Customer's account and this Agreement immediately, without prior notice, if Customer is conducting an illegal business or if AutoPal is instructed to terminate or suspend Customer's account by federal or state regulatory authorities.
    4. Effect of Termination. In the event of termination of this Agreement for any reason, Customer shall immediately cease using the AutoPal Service and Software. After termination Customer will not have any access to the Software or the Customer Data stored therein; it is Customer's sole responsibility to copy or remove such Customer Data from the Software prior to termination. After termination, AutoPal has no obligation whatsoever to maintain or store Customer Data and AutoPal may, in its sole discretion, delete or remove Customer Data from its system. AutoPal reserves the right to store the Customer Data after termination to comply with applicable laws and regulations, use the Customer Data in accordance with Section 4.2, or for any other lawful purpose, subject to ongoing compliance with the confidentiality and security provisions of this Agreement. The Support Addendum shall automatically terminate on the same date as this Agreement is terminated. Each party shall promptly return to the other party or destroy all Confidential Information of the other party. Customer shall pay all accrued charges and fees within thirty (30) days of the date of termination. Sections 3.4, 4, 5.1, 6, 7, 8, 9, 10.4 and 11 shall survive any termination of this Agreement.
  11. MISCELLANEOUS.
    1. Assignment. Customer will not assign this Agreement or transfer, lease, export or grant a sublicense of the rights and licenses granted herein to any third party, without AutoPal's prior written consent. AutoPal's consent to an assignment of this Agreement by Customer is subject to AutoPal's credit review and approval of the proposed assignee.
    2. Governing Law. This Agreement shall be governed by the laws of Utah (excluding conflicts of laws provisions). The parties submit to the exclusive jurisdiction and venue of Utah State and federal courts with respect to any action between the parties relating to this Agreement. The prevailing party in any action shall be entitled to an award of its reasonable costs and attorneys' fees from the other party.
    3. Injunctive Relief. Customer acknowledges that the AutoPal Service and other Confidential Information are highly valuable to AutoPal, and that money damages would not be a sufficient remedy for any breach of Customer's obligations herein with respect to confidentiality and misuse of AutoPal's proprietary materials and information. Therefore, in the event of any breach by Customer of its obligations with respect to the scope of its licenses or confidentiality, AutoPal shall be entitled to seek specific injunctive relief as a remedy for such breach, in addition to all other available legal or equitable remedies, without the necessity of posting bond or other security.
    4. Publicity. Neither party shall release any press release or other public statement regarding this Agreement without the prior consent of the other party, which shall not be unreasonably withheld. However, if so specified in AutoPal's then-current Privacy Policy on its website, AutoPal is permitted to include Customer's name on customer lists that may be provided to potential customers and other third parties.
    5. Severability. In the event that any of the sentences herein or any portion of any of the sentences contained in this Agreement are unenforceable or declared invalid for any reason whatsoever, such unenforceability or invalidity shall not affect the enforceability or validity of the remaining sentences or remaining portions of such sentences and such unenforceable or invalid sentence or portion thereof shall be severed from the remainder of this Agreement.
    6. Entire Agreement; Amendment; Waiver. This Agreement, including Contract Documents and addenda attached hereto, which are incorporated herein by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and that this Agreement supersedes all proposals, oral or written, all previous negotiations, and all other communications between the parties with respect to the subject matter hereof. Any terms and conditions of any purchase order or other instrument issued by Customer in connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement shall not be binding on AutoPal and shall not apply to this Agreement. Except as otherwise specifically set forth herein, this Agreement may be amended only by a written document signed by authorized representatives of both parties. The waiver by either party of any default, breach or obligation hereunder shall be ineffective unless in writing, and shall not constitute a waiver of any subsequent breach or default.
    7. Notices. All notices or other communications required under to this Agreement shall be in writing and shall be deemed given if delivered personally or mailed by registered or certified mail, return receipt requested, or by commercial overnight delivery service with provisions for a receipt, or by confirmed facsimile or e-mail, to the address of the receiving party first set forth above or such other address a party may specify by written notice. Notwithstanding the foregoing, notices from Customer to AutoPal regarding changes to or termination of Customer's subscription to the AutoPal Service must be sent to the email address designated in Section 10.2.
    8. Force Majeure. AutoPal shall be excused from delays or failure to perform Services to the extent such delays or failure result from acts of nature, strikes, fire, riots, war, acts of public enemies, fires, epidemics, labor disputes, or any other causes beyond its reasonable control (each a "Force Majeure" event). In the event of a delay in implementation and related services due to any Force Majeure event, the date or dates of performance of such services by AutoPal shall be extended for a period equal to the time lost by reason of the delay.
    9. Independent Contractors. The parties are independent contractors, and this Agreement shall not be construed to create any agency, franchise, or partnership between them.
Addendum A
Support and Maintenance Services
This Addendum is subject to the terms of the AutoPal Software License Agreement (the "Agreement") between Customer and AutoPal Software, LLC. All support and maintenance services provided by AutoPal to Customer are subject to the terms and conditions of this Addendum and the Agreement. All capitalized terms used and not otherwise defined in this Addendum have the meaning set forth in the Agreement. This Addendum may be updated from time to time at AutoPal's sole discretion, upon notice to Customer.
  1. Support Services: AutoPal will provide technical support to Customer for a fee. When Customer completes activation of the core Software product it will receive a credit for initial support time. Customer must provide AutoPal with Customer's AutoPal Service support code prior to receiving any technical support, in order to validate the authenticity of the support request, the user requesting support, and the correct logging of support time. A minimum of 5 minutes of support time will be deducted from Customer's account for each interaction with AutoPal support. The Administrator User for Customer can control who in Customer's organization has access to generate support codes, thereby limiting who has access to authorize AutoPal to provide fee-based support. If AutoPal support personnel assisting Customer with a support problem determine, in AutoPal's sole and reasonable discretion, that the problem is due to a Software bug or error, AutoPal will not deduct the time spent resolving the Software error from Customer's quota of support time. AutoPal will use commercially reasonable efforts to correct material errors in the Software within a reasonable time.

    Customer's available support time can be viewed in the My Account area of the Software. If Customer's account goes to a negative balance at any time, the Software will automatically purchase support on Customer's behalf in one hour increments, until Customer's account has a positive amount of available support time. Customer may purchase support time at a discounted rate by purchasing support in advance and in bulk from the AutoPal Software Store.
  2. Support Hours: Live support is available Monday - Thursday from 7am - 5pm Pacific Time, Friday from 7am - Noon Pacific Time, excluding weekends and US federal banking holidays. Additional after-hours support is provided via AutoPal's support email address, support@autopalsoftware.com.
  3. Recommended Support Method: Email support is the most efficient. If at all possible AutoPal recommends that customers send support requests via email. AutoPal has found that customers who take the time to write out their questions often find the answers to their questions prior to using fee- based support time, by using the free AutoPal support resources already provided.
  4. Support Types:
    1. Live Support: This is support provided by a live representative of AutoPal. Live support may be given via phone, email, screen-share, meetings, or other means of communication.
    2. Standard Support: Standard support includes phone calls, emails, or any other work on the behalf of Customer provided by AutoPal's representatives, except for Premium Support. Standard Support items usually include import work, custom forms work, company setup, settings selections, and most other non-third-party support projects.
    3. Premium Support: if premium support is requested the support ticket will be escalated to a specialty representative. Premium support is any support for third-party software or platforms, including QuickBooks, Credit Manger 4, operating systems, productivity software, web browsers, etc., or for AutoPal's integration with any third party software or platforms. For premium support, Customer's account will be charged double the standard support rate.
  5. Scheduled Support: AutoPal highly recommends that Customer pre-schedule support time for AutoPal support personnel to assist and/or train Authorized Users, if its Authorized Users will be requesting more than 15 minutes of support, in order to ensure the availability of the appropriate resources. Scheduled support is available on a first come, first served basis. This will give you exclusive access to a support representative for your company at that scheduled time.

    All scheduled training sessions must be scheduled at least one business day in advance. If Customer does not show for any reason or cancels the scheduled training less than one business day prior to the scheduled training session, Customer's account will still be charged for the training time. Each Software subscription may have a maximum of two scheduled trainings per calendar day.
  6. Support Categorization: When an Authorized User calls in for support, upon completion of the support given AutoPal Tech Support will determine, in its sole reasonable discretion, if the support provided will be categorized and charged as standard or premium support, depending on the activities and processes that were requested in the support ticket and the services actually provided to Customer.
  7. Free Support: Free support resources are provided as follows:
    1. YouTube Channel: AutoPal provides instructional videos via our YouTube Channel at http://youtube.com/autopalsoftware. Users can access these videos 24/7 at no cost. These YouTube videos are also embedded in the Software.
    2. Wiki Support: AutoPal also provides articles on most topics in the AutoPal Wiki.
  8. Maintenance: AutoPal will maintain the Software by providing routine updates to Software, including bug fixes, error corrections, enhancements, and Documentation corrections, as AutoPal may develop and implement from time to time in its sole discretion.
Addendum B
AutoPal Fees
See Pricing Table for actual fee rates and charges.
  1. Activation Fee: Activation Fee: Customer is responsible for a one-time activation charge. Activation will not be deemed complete until the required funds are verified and paid in full. This fee is not refundable for any reason. Upon receipt of the activation fee, AutoPal will provide access to the Software and Customer will have full access to the features it is enrolled for. However, Customer may be required to complete additional registration and/or pay for certain AutoPal products or features and third party applications, or complete other processes, to obtain full functionality. Some initial hours of AutoPal technical support time, as specified in the Contract Documents, are included in Customer's activation fee. If additional technical support is needed, the technical support hourly rate fee will apply (see the Pricing Table and Addendum A). All technical support training and services are provided on a first come, first served appointment basis. Additional products within the AutoPal Store may include a separate activation charge (see Pricing Table).
  2. Subscription Fees:
    1. Core Software Subscription: This is a monthly software subscription fee that is assessed on the first (1st) day of every month. Monthly subscription fees grant Customer access to the Software on a month-by-month basis. All monthly subscription fees are due and payable on the 1st day of each month via debit card, credit card, or ACH. Customer's monthly rate is determined by totaling Customer's live accounts (i.e., live loans on the AutoPal system that are associated with Customer's subscription) on the billing date. Applications and archived accounts ARE NOT counted towards the number of Customer's accounts, for monthly subscription billing purposes.
    2. Add-on Product Subscriptions: These fees are for products that are add-on products to the core Software subscription. All Add-on Product subscriptions are sold "AS IS" and are not refundable. Add-on Products may be purchased either at the time of activation of the core Software subscription or at any time later through the AutoPal Store. Each Add-on Product may have a one-time activation fee associated with it, as well as monthly subscription charges. These Add-on Products include:
      1. Hosted Website. Customer may also be required to purchase other third party products or features in order for this feature to operate as intended.
      2. QuickBooks Live. Customer may also be required to purchase other third party software to integrate with this product, in order for it to operate as intended.
      3. Credit Bureau Reporting. Customer may also be required to purchase other third party software to integrate with this product, in order for it to operate as intended.
      4. API Tools. Customer will be required to pay for any and all costs incurred in order to integrate with AutoPal's API system.
    3. Usage Fees: All usage fees are charged on a "per transaction" basis. Usage fees are separate from the core software subscription fees and are only charged when the specific services or functions associated with these fees are used. Usage fees include:
      • tcn phone calls
      • Online Payments
      • Data Import
      • Data Storage
      • Resurrecting, Restoring, Archiving or Deleting an Account
      Customer's consent and approval for these charges is granted at the time of usage of the feature or function. The fees specified in the Pricing Table show ONLY AutoPal's charge for the usage of that feature; there may be (and often are) additional third party charges.
    4. Custom Programming Fees: All custom programming fees are quoted on a case by case basis. Customer is solely responsible for making software programming requests to AutoPal's custom programming department. If AutoPal accepts a requested project, then a quote with a description of the project, pricing and payment terms, and estimated time line will be sent to Customer for its approval. The initial payment for custom programming is due in full upon Customer's approval of the project, prior to AutoPal commencing work. Payments will be made using Customer's standard payment method on file with AutoPal. Customer is responsible for working with the AutoPal custom programming team to ensure that the project meets the agreed-upon specifications in the quote and is as Customer specified in its written request. AutoPal has the final right to resolve any disputes regarding functionality in connection with custom programming projects. Any customized software is licensed to Customer under the terms and conditions of this Agreement.
    5. Technical Support Fees: Upon activation Customer will receive the number of hours of technical support time credited to its account that is specified in the Contract Documents. Any time Customer's representatives or users contact AutoPal, the time that AutoPal spends performing services for or assisting such personnel, will be deducted from Customer's prepaid technical support time. Support time includes phone conversations, screen share, electronic communications, project work, and any other project related to AutoPal or any time spent by AutoPal personnel in assisting Customer's personnel with their use of the Software, such as creation of custom forms, help with data extraction from third parties, and other forms of support. If Customer's support account goes negative on technical support time, the Software will automatically purchase technical support in one (1) hour increments until the account has a positive time amount. Customer may purchase technical support time in bulk in advance for a discount from the AutoPal Store. Additional details regarding technical support are set forth in the Support Addendum (Addendum A).
    6. Third Party Costs and Fees: The AutoPal Service integrates with several third party products and services. Many of these third parties charge separate fees for their services. If Customer is required to have a direct relationship with a third party vendor, Customer will be solely responsible for any associated billing for such third party's services. AutoPal is not responsible for any payments to third parties on behalf of Customer.