AppOne for Dealers Agreement
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT AND THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS PRODUCT. Your use of this product is expressly conditioned on your acceptance of the following terms and conditions of this End User License Agreement (“Agreement”). By clicking “I Agree” you are representing that you have read the Agreement, that you are agreeing to be bound by the terms and conditions of the Agreement, and that you have the authority to accept the Agreement on behalf of your financial institution or company. If you do not have the authority to accept the terms and conditions of the Agreement or do not understand or agree with all the terms and conditions, you must click “Cancel,” which will cancel the order and you will not be granted access to this product.
This Agreement is by and between:
AppOne, Inc., with its principal place of business at One Reynolds Way, Kettering, OH 45430 (“AppOne”); and
Customer, the entity communicated to AppOne as the user of the services on whose behalf the terms and conditions of this Agreement are accepted by clicking “I Agree.”
NOW, THEREFORE, in consideration of the mutual covenants and representations herein, the sufficiency of which the parties hereby acknowledge, the parties hereby agree as follows:
- LICENSE GRANT. Subject to the conditions in this Agreement, AppOne hereby grants to Customer a non-exclusive, non-transferable, terminable license to access and use the AppOne solution, and documents created thereby (the “AppOne Solution”). The AppOne Solution will allow Customer to order and print document packages for sales made by Customer. Customer may use the AppOne Solution for the sole purpose of creating documentation for transactions in which Customer is a party or in which its customers are a party. The license is granted on a “per-rooftop” basis, with Customer obligated to pay one monthly subscription fee for each unique physical address location where transaction documents are originated. By way of clarification, a Customer that has two facilities with the same mailing address only requires one license. A Customer that maintains two locations with different addresses requires two licenses. Customer may not sub-license the AppOne Solution, allow third parties (including its customers) to access or use the AppOne Solution, or use the AppOne Solution to support sales made by Customer at any location other than the licensed location. Except for entering applicable information in completion fields, Customer may not modify the content or presentation of the AppOne Solution documents.
- FEES. Customer is responsible for paying any fees relating to the use or receipt of the AppOne Solution. If Customer fails to pay AppOne any fees due relating to this Agreement, Customer shall be in breach of this Agreement and AppOne may terminate as provided herein. Customer authorizes AppOne to collect by ACH and/or by Customer’s credit card on file with AppOne.
AppOne reserves the right to impose price increases for all AppOne Solutions or deliverables. Such increase will be to AppOne’s then-prevailing price, or by an amount based on the percentage rate of price increases for all goods and services as determined by the Bureau of Labor Statistics of the U.S. Department of Labor (Consumer Price Index).
Subject to the terms of this Agreement, AppOne agrees to license to Customer the AppOne Solution subject to the payment of the fees as set forth on the order form (“Order Form”). Upon execution of this Agreement, AppOne will invoice Customer for any initial fees. In addition, on a monthly basis, beginning upon execution of this Agreement, Customer will be invoiced monthly for ongoing fees. For purposes of this Agreement, initial fees are one-time fees such as set-up fees, activation fees, or initial license fees (“Initial Fees”). Ongoing fees are mandatory fees that Customer pays for the continued use of the AppOne Solution and receive updates, maintenance, and support (“Ongoing Fees”). The monthly Ongoing Fees are based upon the forecasted number of annual transactions for a unique dealership location. A transaction is defined as each unique loan transaction (identified by a unique system generated transaction identifier) where the dealer accessed and printed one or more documents from the AppOne Solution for a non-integrated lender (“Transaction”). A non-integrated lender is a lender that is not currently integrated into the AppOne Platform Solution (“Non-Integrated Lender”) and that does not have a contractual relationship with AppOne that sponsors the use of the platform for their dealers. If multiple sets of documents are prepared to correct typographical errors or to make other minor changes under the same transaction number or other code assigned to each unique transaction, the multiple sets will constitute one transaction. If Customer fails to pay any fees due relating to this Agreement, Customer will be in breach of this Agreement and AppOne may terminate as provided herein. Customer authorizes AppOne to collect by ACH and/or by Customer’s credit card on file with AppOne.
- ACCESS AND CONTROLS. Customer’s access to the AppOne Solution is possible only in the software and hardware configurations specified by AppOne as they may be revised from time to time. Customer will provide and maintain, at its own expense, all equipment, computer software, peripheral access devices, communication lines, internet access, telecom equipment and print and display devices required to access and/or use the AppOne Solution. AppOne shall have no obligation to maintain the software of others, including network software and/or interfaces. Customer agrees to secure and protect access to and use of the AppOne Solution in a manner consistent with the maintenance of AppOne’s rights therein and to take appropriate action by instruction or agreement with employees who are permitted access to the AppOne Solution, or to copies of it, to satisfy Customer’s obligations in this Agreement and to preserve AppOne’s intellectual property rights and trade secrets. Customer agrees to inform any of its personnel who have access to the AppOne Solution of its proprietary and confidential nature.
(a) Ownership. Customer shall be responsible for the input, transmission, or delivery to and from AppOne of all information and data required by AppOne to provide the AppOne Solution. Customer will remain the owner of all data related to its operations, customers, and transaction data, and except as set forth in this Agreement, AppOne will make no use of such data for any purpose except as described herein. AppOne may use the data for the sole purpose of generating Customer reports, and aggregating data with similar data from other licensees and developing data analysis, benchmarks, comparative statistics, and demographic performance measures relating to your operations and those of other licensees.
(b) FTC Safeguards Rule. The Federal Trade Commission (FTC) Standards for Safeguarding Customer Information (16 CFR Part 314) (the “Safeguards Rule”) applies to parties considered to be financial institutions within the FTC’s jurisdiction under the Gramm-Leach-Bliley (GLB) Act. The Safeguards Rule requires those parties to secure records and information from and about customers. This Section applies to the extent you are subject to the Safeguards Rule, you share with AppOne your “Customer Information” (as defined in the Safeguards Rule), and in circumstances in which AppOne is a “Service-Provider” (as defined in the Safeguards Rule) with regard to such information.
- AppOne will implement and maintain safeguards appropriate to protect the security, confidentiality, and integrity of your Customer Information.
- You will develop, implement, and maintain a comprehensive information security program sufficient to ensure the security, integrity, and confidentiality of Customer Information of the type shared with or disclosed to AppOne. It is also your responsibility to: (i) disclose to AppOne any relevant risks you identify regarding your Customer Information; and (ii) identify the employee(s) who coordinate your Information Security Program.
- You are solely responsible for your compliance obligations under the Safeguards Rule. AppOne’s provision of products and services to you does not constitute, nor shall it be deemed to constitute, a guarantee that your business is in compliance with any statute or regulation. AppOne’s review or approval of any of your systems, applications, processes, or procedures does not constitute, nor shall it be deemed to constitute, the assumption by AppOne of any responsibility or liability for compliance by you with any statute or regulation.
- You agree that you and third parties acting on your behalf have no right or authority to access or audit AppOne’s systems, applications, processes, procedures, or practices, except to the extent specifically authorized by AppOne.
If you believe AppOne’s efforts to safeguard Customer Information affect you in a materially adverse manner and you promptly notify AppOne in writing, stating the basis of your belief, AppOne will work with you in good faith to resolve your complaint. If after sixty (60) days you and AppOne are unable to resolve your complaint, then, at AppOne’s option, AppOne will either permit you to discontinue the affected Item without liability or you will submit to binding arbitration as described in the Agreement. You shall pay all amounts incurred and remain otherwise fully obligated for any Items or Services up through the effective date of such discontinuance or arbitration decision. THIS IS YOUR ONLY REMEDY AND APPONE’S ONLY OBLIGATION UNDER THIS SECTION.
- TERM AND TERMINATION. This Agreement may be terminated by either party upon written notice to the other party, which notice may be via electronic mail or other electronic means.
- WARRANTY AND DISCLAIMER. APPONE PROVIDES THE APPONE SOLUTION TO CUSTOMER “AS IS” AND MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. APPONE DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE APPONE SOLUTION (WHICH INCLUDES THE OUTPUT OR PRODUCTS OF THE APPONE SOLUTION). APPONE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. IN NO EVENT WILL APPONE BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN APPONE REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. Customer shall have the sole responsibility for adequate protection and backup of its data used in connection with the AppOne Solution, and shall not have any claim against AppOne for lost data, re-run time, inaccurate input, work delays, or lost profits resulting from the use of the AppOne Solution. The limitations of damages set forth in this Agreement are fundamental elements of the basis of the bargain between AppOne and Customer, and AppOne would not have entered into this Agreement without such limitations.
AppOne does not represent that Customer’s use of the AppOne solution creates a relationship between Customer and any lending institutions or other persons or entities.
Customer is solely responsible for (a) ensuring that it gathers and enters all required data items for each specific transaction documented using the AppOne Solution, (b) testing its access to and integration with the AppOne Solution, (c) creating and using any additional documentation that is required for an indirect lending transaction that is not available in the AppOne Solution, and (d) reviewing all lending transaction documentation obtained using the AppOne Solution, including reviewing with its legal counsel, for accuracy, completeness, and applicability before using them.
- HOLD HARMLESS. Customer agrees to indemnify, defend, and hold AppOne, its parents, subsidiaries, affiliated companies, suppliers, and their respective officers, directors, employees, and agents, harmless from and against any and all losses, damages, deficiencies, claims, causes of action or expenses of any nature (including, without limitation, reasonable attorneys’ fees and costs) resulting from or arising out of any breach by Customer of any of its obligations hereunder. AppOne, may at Customer’s expense, control the defense of any third party claim, suit, action or proceeding that gives rise to a right of indemnification under this Section 7, if AppOne reasonably believes that such assumption is necessary or appropriate to assure that its right or ability to conduct its business, its reputation, goodwill or financial condition are not materially impaired.
- NOT A SUBSTITUTE FOR LEGAL COUNSEL. Before using any AppOne Deliverable, Customer is advised to have its attorney review it to determine its legal sufficiency for Customer. Customer acknowledges that AppOne is not authorized to practice law, nor may any of AppOne’s officers, employees, or agents provide legal counsel to Customer. Thus, any questions of a legal nature must be directed to Customer’s legal counsel, for whom AppOne has no obligation or liability. The following notice is required by law: APPONE’S PRODUCTS AND SERVICES ARE NOT A SUBSTITUTE FOR THE ADVICE OF AN ATTORNEY.
- NO TAX ADVICE. Although based on current law and information generally available, general assumptions may be made by AppOne and implemented in the AppOne Deliverable, which may not take into account potentially important considerations to specific taxpayers. Therefore, the views and information presented may not be appropriate for all of Customer’s clients or internal business needs. AppOne does not provide tax advice. Customer should consult with Customer’s own tax advisors and Customer is solely responsible for any tax, tax penalties, or interest related to Customer’s clients’ tax returns.
- RESTRICTIONS ON USE OF APPONE SOLUTION. Except as otherwise specifically provided, Customer may not (i) copy, reproduce, or store in paper, electronic, or other media the AppOne Solution except that Customer may make a reasonable number of copies of documents created by the AppOne Solution for archival purposes, for providing to consumers and lenders, or for its internal staff training; (ii) modify the AppOne Solution except for the data fields or prompts designed for input of data or Software that is licensed for development use by Customer; (iii) create any derivative works from the AppOne Solution; (iv) re-sell, lease, or sublicense the AppOne Solution; (v) provide for-fee training or consulting services to people or entities who are not party to this Agreement; (vi) provide for-fee document preparation services to people or entities who are not party to this Agreement; (vii) make the AppOne Solution publicly available through a web site or other means; (viii) display or allow access to or use of the AppOne Solution by persons or at facilities other than those authorized under this Agreement; (ix) use the AppOne Solution in a way that would violate a law or regulation or contrary to its described or intended use; (x) decompile or reverse engineer the AppOne Solution.
- INTELLECTUAL PROPERTY NOTICES AND TRADEMARKS. AppOne claims a proprietary interest and/or copyright interest in the AppOne Solution and the forms and documents created thereby. Customer acknowledges AppOne’s interests in the AppOne Solution and agrees: (i) it has no title to or ownership of the AppOne Solution (including any copyright, trademark, trade secret, patent, or other proprietary rights in them), (ii) it will not take or permit any action to be taken, which would compromise or dilute such AppOne interests, and (iii) it will treat the AppOne Solution with the same degree of care and confidence as it treats its own valuable intellectual and proprietary property, but in no case less than reasonable care. Customer will not remove any copyright, patent, or trademark notices or AppOne trademarks from any forms or other documents created by the AppOne Solution in which a notice or trademark is present and will include any such notices and trademarks in any reproductions or modifications of materials permitted by this Agreement.
(a) By AppOne. AppOne will, at its option, either reimburse Customer for the cost of defense, or defend a suit brought against Customer, to the extent such suit is based on a claim that the AppOne Solution constitutes an infringement, misappropriation, or misuse of any existing United States patent, copyright, trademark or trade name or trade secret or other intellectual property right. AppOne will pay, or at its sole option, reimburse Customer for damages and costs finally awarded against Customer by a court as a result of such suit. If, in AppOne’s opinion, the AppOne Solution is or is likely to become the subject of an infringement, misappropriation, or misuse claim or suit, Customer will, at the request of AppOne, immediately cease use of the AppOne Solution and AppOne will have the following options: (i) procure for Customer, at AppOne’s expense, the right to continue using the AppOne Solution; (ii) replace or modify the AppOne Solution, at AppOne’s expense, so that the AppOne Solution becomes non‑infringing but without substantially and adversely changing its original functionality; or (iii) if neither of (i) or (ii) is commercially reasonable, discontinue providing the AppOne Solution, and release Customer from any further obligations with respect to the AppOne Solution.
AppOne will have no liability under any provision of this Section 12(a) with respect to any claim if (i) the infringement, misappropriation, or misuse is based upon (A) use of the challenged AppOne Solution with any equipment or software not made, provided, or contracted for by AppOne (unless such use is authorized in AppOne’s documentation or is mutually agreed to by the parties), (B) any modification of such challenged AppOne Solution by Customer (unless such modification is authorized by AppOne) or (C) compliance by AppOne with Customer’s unique written specifications or instructions (excluding general product/services functionality requirements of Customer) or (ii) a demand for indemnification arises, directly or indirectly out of an allegation of infringement, misappropriation or misuse asserted by the parents, subsidiaries, or other affiliates of Customer.
The foregoing states the entire liability of AppOne with respect to infringement third party intellectual property rights by the challenged AppOne Solution, and any resulting unavailability of the challenged Product.
(b) By Customer. Customer shall indemnify AppOne and hold AppOne harmless against any claim or action arising from or related to (i) the use by Customer of the AppOne Solution in a manner other than that authorized in this Agreement; (ii) the negligence or willful misconduct of Customer; (iii) any breach of applicable law by Customer; or (iv) allegations that the Customer-supplied text, figures, data, code, or other input or completion information, alone or in combination with the AppOne Solution, infringes a United States patent, copyright, or other proprietary right of a third party.
(c) Procedures. The indemnified party agrees to promptly notify the indemnifying party of any claim under this Section 12 and grants the indemnifying party the sole right to control the defense and disposition of all such claims. The indemnified party shall provide the indemnifying party with reasonable cooperation and assistance in the defense of any such claim at the expense of the indemnifying party. The indemnified party will be given the opportunity to approve any settlement of the claim, such approval not to be unreasonably withheld, conditioned, or delayed.
- LIMITATION OF LIABILITY. IN NO EVENT SHALL APPONE BE LIABLE FOR LOSS OF GOODWILL OR PROFITS, LOSS OF SERVICE OR DATA, OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM CUSTOMER’S USE OF THE APPONE SOLUTION, INCLUDING APPONE’S SUPPLY OF LICENSED CONTENT, ACCESS RIGHTS, OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. CUSTOMER MAY NOT ASSERT ANY CLAIM AGAINST APPONE MORE THAN ONE YEAR AFTER SUCH CLAIM ACCRUED. APPONE’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS OR OBLIGATIONS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY CUSTOMER TO APPONE FOR THE APPONE SOLUTION RESULTING IN SUCH LIABILITY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE THE CLAIM ACCRUED.
(a) Definition. “Confidential Information” means documents, materials, or information of AppOne or Customer (or their suppliers or Affiliates) in which one party (the “Discloser”) (or its suppliers, licensors, or Affiliates) has an actual or claimed property or other right or interest and includes, without limitation, trade secrets, copyrights, patents, inventions, techniques, computer programs, software code (source and object code), custom modifications, algorithms, methods, logic, architecture and designs, business affairs, customer lists, product pricing, product development plans, marketing plans, and terms and conditions of this Agreement, irrespective of whether any or all of such things are protected by intellectual property or other applicable law. “Confidential Information” also includes “Personal Information,” which is personal or personally identifiable information and records of or regarding Customer’s employees, investors, customers (including parties whose debt is serviced by Customer), and prospective customers of Customer. Confidential Information does not include any information that is, or becomes publicly available without breach of this Agreement, or which the receiving party (i) already possesses without obligation of confidentiality; (ii) develops independently; or (iii) rightfully receives without obligation of confidentiality from a third party.
(b) Confidentiality Obligations. Each Party (the “Recipient”) agrees to hold as confidential all Confidential Information it receives from the Discloser. All Confidential Information shall remain the property of the Discloser or its suppliers, licensors or Affiliates. Upon written request, Confidential Information will be returned to the Discloser, or destroyed, at the termination or expiration of this Agreement. Recipient will use the same care and discretion to avoid disclosure of Confidential Information as it uses with its own similar information that it does not wish disclosed, but in no event less than a reasonable standard of care. Recipient may only use Confidential Information in accordance with the purpose of this Agreement. Recipient may disclose Confidential Information to (i) its employees and agents, and the employees and agents of Affiliates, who have a need to know; and (ii) any other party with Discloser’s written consent. Before disclosure to any of the above parties, Recipient will have a written agreement with such party sufficient to require that party to treat Confidential Information in accordance with this Agreement. Recipient may disclose Confidential Information to the extent required by law. However, if disclosure is required by law, Recipient agrees to give the Discloser prompt notice so that it may seek a protective order. Nothing in this Agreement shall restrict AppOne from the use of any ideas, concepts, know-how, or techniques contained in Confidential Information that are related to its business activities (“Residuals”), provided that in so doing, AppOne does not breach its obligations under this Section to maintain the confidentiality of Customer’s Confidential Information. The provisions of this Section survive any termination or expiration of this Agreement.
- GOVERNING LAW, DISPUTE RESOLUTION. This Agreement will be governed by the substantive laws of the State of Ohio, without reference to provisions relating to conflict of laws. The parties mutually agree that any and all claims, disputes, or controversies arising out of or relating to this Agreement will be submitted to mandatory arbitration in accordance with the commercial rules of the American Arbitration Association (“AAA”). All arbitrators shall be attorneys and shall swear an oath of neutrality. After the arbitration proceeding has been completed, either party may seek enforcement of the award in accordance with the Federal Arbitration Act. Aside from filing or other fees required to initiate the arbitration, all fees of arbitration will be split evenly between the parties unless an award is made by the arbitrators as otherwise allowed by this Agreement. The arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of the dispute between the parties. If a party does not pay its respective share of arbitration fees, then all claims (including counterclaims) of the non-paying party shall be dismissed by the arbitrators or AAA, and the non-paying party shall not be allowed to bring any further claims in the arbitration for affirmative relief. The non-paying party may still participate in the arbitration to defend claims brought against it. No claims or disputes between the parties may be resolved by class action or class arbitration. The parties agree that any arbitration proceeding will take place in Dayton, Ohio, unless otherwise agreed in writing by the parties. At AppOne’s sole discretion, collection of accrued amounts may be excepted from this arbitration requirement, and the parties agree to be subject solely and exclusively to the jurisdiction of the courts of Montgomery County, Ohio for any such collection efforts. Customer agrees to reimburse AppOne for any and all expenses, including reasonable attorneys’ fees, that AppOne may incur in collection of amounts due under this Agreement, in undertaking the remedies provided for by this Agreement, and in the enforcement of this Agreement.
- NOTICES. Any written notice required or permitted to be given hereunder shall be given by (a) first class, postage prepaid; (b) registered or certified mail, return receipt requested; or (c) nationally recognized courier service to the other party. All such notices shall be effective upon receipt.
- EQUITABLE RELIEF. The rights granted to the parties in this Agreement are unique and remedies for a breach by either party will be inadequate, therefore the non-breaching party will be entitled to equitable relief in the event of a breach, including injunction and specific performance in addition to any other remedies available in this Agreement, or at law or equity.
- SURVIVAL. All rights and obligations of the parties under this Agreement that, by their nature, do not terminate with the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
- INDEPENDENT CONTRACTORS. Customer and AppOne expressly agree they are acting as independent contractors only, and specifically not as fiduciaries, partners, franchisees, or joint venturers, and under no circumstances shall any of the employees of one party be deemed the employees of the other for any purpose.
- GOVERNMENT USE. Any AppOne Software and related documentation provided under this Agreement are deemed to be “commercial items,” “commercial computer software”, and “commercial computer software documentation” as set forth in the Federal acquisition regulations at 48 CFR §§2.101 and 227.7202 with RESTRICTED RIGHTS. Any use, modification, reproduction, release, performance, display, or disclosure of the Software and related documentation by the United States government is subject to restrictions as set forth in subpar. (c)(1) and (2) of the Commercial Computer Software – Restricted Rights Clause at 48 CFR 52.227-19 and otherwise shall be governed solely by the terms of this Agreement.
- GENERAL. Each party acknowledges that it has not entered into this Agreement in reliance upon any representation made by the other party not embodied in this Agreement. If any provision of this Agreement is held to be unenforceable or invalid, the other provisions shall continue in full force and effect. Neither party shall be responsible for delays or failures in performance resulting from acts reasonably beyond the control of that party. The failure of either party to insist on strict performance of any of the provisions hereunder shall not be construed as the waiver of any subsequent default of a similar nature. This Agreement constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all previous agreements with respect thereto, including any confidentiality agreement entered into by the parties during discussions leading up to this Agreement. Modifications of this Agreement must be in writing (including electronic) and executed (including click-through) by representatives of the parties. This Agreement is binding upon the parties and their respective successors and permitted assigns. Customer may not assign this Agreement without the prior written consent of AppOne, and such consent will not be unreasonably withheld. AppOne may assign this Agreement without consent from Customer. Neither of the parties will be liable for delays or failure in the performance of obligations under this Agreement where such delay or failure is due to an act of God or other cause beyond its reasonable control.