HOSTED SOFTWARE SERVICES TERMS AND CONDITIONS OF USE AND SUBSCRIPTION AGREEMENT

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT " ) CAREFULLY BEFORE ACCESSING OR OTHERWISE USING LICENSED SERVICES. YOU MAY NOT USE THE SERVICES UNTIL YOU ACCEPT THE TERMS OF THIS AGREEMENT. YOU AGREE TO BE BOUND BY THESE TERMS OF SERVICE BY USING THE SERVICES, OR OTHERWISE ACCESSING OR USING THE PRODUCTS AND/OR SERVICES. PLEASE MAINTAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

TradeAutoX, LLC’s (“TradeAutoX”) software (the “Service”, the “Software”, or the “TradeAutoX Platform”) is provided to you on a software-as-a-service (“SaaS”) basis. The Service, as provided pursuant to this Agreement, means a hosted, on-demand, web-based wholesale automobile sales platform software offered by Licensor, including updates thereto from time to time. The Service is owned, operated, and maintained by Licensor and the following terms and conditions govern your subscription with Licensor and your use of the Service and all materials and content available therein.

YOU MUST AGREE TO THE TERMS AND CONDITIONS FOR THE USE OF THE SERVICE (THE “TERMS AND CONDITIONS” OR THE “AGREEMENT”) BEFORE BECOMING A SUBSCRIBER AND USING THE SERVICE.

THESE TERMS AND CONDITIONS CONSTITUTE A BINDING CONTRACT BETWEEN YOU AND LICENSOR. BY USING OR ACCESSING THE SERVICE YOU ACKNOWLEDGE THAT YOU HAVE READ AND THAT YOU UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS.

The terms “you” or “your” or “Subscriber” shall refer to any person or entity that utilizes the Service in accordance with the Terms and Conditions herein.

PROVISION AND USE OF SERVICE

Licensor shall make the Service available to you in accordance with this Agreement, and shall only be used for the purposes set forth on Schedule A attached hereto.

You shall use the Service solely for your internal business purposes, in compliance with applicable law, and shall not: (i) resell, sublicense, lease, time-share, or otherwise make the Service available to any third party; (ii) send or store infringing or unlawful material; (iii) send or store viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Service or the date contained therein; (v) modify, copy, or create derivative works based on the Service; (vi) reverse engineer the Service; (vii) access the Service for the purpose of building a competitive product or service or copying its features or user interface; (viii) use the Service, or permit it to be used, for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without Licensor’s prior written consent; (ix) permit access to the Service by a direct competitor of Licensor; or (x) make use of the Service to engage in fraudulent or deceptive business practices or other illegal activities. You are responsible for all activities conducted under your logins and for your users’ compliance with this Agreement. You shall instruct all users to safeguard login and password information, and shall notify Licensor immediately if such login or password information has been compromised.

In the event that Licensor determines that Subscriber is responsible for of a data breach, Subscriber agrees to indemnify and hold Licensor harmless from losses and/or damages arising from said data breach and Subscriber further agrees to implement appropriate safeguards to ensure that there is no recurrence.

LICENSE TO USE SERVICE

Subject to your compliance with the Terms and Conditions and all associated documents or terms incorporated herein by reference, Licensor grants you a limited, revocable, non-assignable, non-sublicensable, non-transferable, non-exclusive license to access, view, and utilize the Service and certain content and materials thereon in order to perform related services for your clients and your employees. No other rights are granted or implied.

RESERVATION OF RIGHTS AND OWNERSHIP

Licensor reserves all rights not expressly granted to you in this Agreement. The Service and its constituent parts and underlying intellectual property is protected by copyright and other intellectual property laws and treatises. Licensor owns the title, copyright, and other intellectual property rights in the Service and its constituent parts. The Service is licensed pursuant to this Agreement, not sold. Licensor does not grant you any rights to the trademark or service marks used in connection with the Service.

USE OF SERVICE

You understand that Licensor operates the Service as a tool that facilitates the wholesale sale and purchase of automobiles between and among automobile dealerships. The Service provides customers with the ability to sell and purchase automobiles on a wholesale basis between and among other subscribing automobile dealerships.

The Service is provided to you on an “as is” and “as available” basis. Licensor does not guarantee, represent, or warrant that use of the Service will be uninterrupted, timely, available, secure, or error-free, and does not guarantee, represent, or warrant that any errors in the software will be corrected. Licensor does not guarantee, represent, or warrant that use of the Service will result in the successful purchase or sale of any automobile for any subscriber.

Use of the Service is expressly contingent upon Licensor’s timely receipt of Subscriber’s monthly payment and compliance with these Terms of Service.

SERVICE FEES; TERM

Except as otherwise provided herein, the fees set forth on Schedule C attached hereto shall govern this Agreement until this Agreement terminates or expires, provided, however, additional fees and costs associated with processing of payments may apply, as governed by Schedule D to this Agreement. This Agreement shall be effective for a twelve (12) month term beginning on the Effective Date. The term of this Agreement shall automatically renew for additional one month periods at Licensor’s then-current fees until terminated as provided herein.

GENERAL CONDITIONS

You must be eighteen (18) years or older and in business as an automobile dealership to use the Service. As such, the Service is not directed to children under thirteen (13) years of age. The Service may not be used for any illegal or unauthorized purpose. You are responsible for maintaining the security of your account and password. Licensor will not be liable for any loss or damage for your failure to comply with this security obligation. Licensor will not be liable for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other intangible losses resulting from: (i) the use or the inability to use the Service; (ii) unauthorized access to or alteration of your transmissions or data; (iii) statements or conduct of any client or third-party; (iv) termination of your account; or (v) any other matter relating to the Service or services provided or potentially provided as a result of the Service.

PAYMENT, UPGRADING AND DOWNGRADING TERMS

Keeping a valid credit card on file with Licensor is required in order to maintain your subscription. The subscription fee is billed automatically on a monthly basis and is non-refundable. There will be no refunds or credits for partial months of service or refunds for months unused with an open account. In the event a subscriber desires to upgrade or downgrade their tier, and such upgrade or downgrade is permitted by Licensor, the credit card that subscriber provided will automatically be charged the new rate on the first day of the next billing cycle.

The parties to this Agreement agree that the Service offered hereunder is not a consumer service or product and is offered only to businesses for business purposes. You agree, as a material inducement for entering into this Agreement, that you are not an individual consumer and that the Services is not being procured by you for personal use, but rather it is being procured for business and/or commercial purposes.

Included among the services offered as part of the TradeAutoX Platform are payment processing services, which are provided pursuant to the terms of this Agreement, including Schedule D, which sets forth in greater detail the terms governing the payment processing services provided as part of the TradeAutoX Platform.

TRADEMARKS; INTELLECTUAL PROPERTY; PUBLICITY

Trademark License. TradeAutoX grants you a revocable, non-exclusive, non-transferable license to use TradeAutoX’s trademarks used to identify the TradeAutoX Payment Service (the “Trademarks”) solely in conjunction with the use of the TradeAutoX Payment Service. Service Provider agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to TradeAutoX (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks.

Intellectual Property. Other than the express licenses granted by this Agreement, TradeAutoX grants no right or license by implication, estoppel or otherwise to the TradeAutoX Payment Service or any Intellectual Property Rights of TradeAutoX. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of TradeAutoX, in the TradeAutoX Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.

Publicity. Service Provider hereby grants TradeAutoX permissions to use Service Provider’s name and logo in its marketing materials including, but not limited to use on TradeAutoX’s website, in customer listings, in interviews and in press releases.

Trademark License. TradeAutoX grants you a revocable, non-exclusive, non-transferable license to use TradeAutoX’s trademarks used to identify the TradeAutoX Payment Service (the “Trademarks”) solely in conjunction with the use of the TradeAutoX Payment Service. Service Provider agrees that it will not at any time during or after this Agreement assert or claim any interest in or do anything that may adversely affect the validity of any Trademark or any other trademark, trade name or product designation belonging to or licensed to TradeAutoX (including, without limitation registering or attempting to register any Trademark or any such other trademark, trade name or product designation). Upon expiration or termination of this Agreement, you will immediately cease all display, advertising and use of all of the Trademarks.

Intellectual Property. Other than the express licenses granted by this Agreement, TradeAutoX grants no right or license by implication, estoppel or otherwise to the TradeAutoX Payment Service or any Intellectual Property Rights of TradeAutoX. Each party shall retain all ownership rights, title, and interest in and to its own products and services (including in the case of TradeAutoX, in the TradeAutoX Payment Service) and all Intellectual Property Rights therein, subject only to the rights and licenses specifically granted herein.

Publicity. Service Provider hereby grants TradeAutoX permissions to use Service Provider’s name and logo in its marketing materials including, but not limited to use on TradeAutoX’s website, in customer listings, in interviews and in press releases.

AVAILABILITY OF SERVICE

Licensor does not guarantee, represent, or warrant that access to the Service will be uninterrupted or error-free, and Licensor does not guarantee that Subscriber will be able to access or use all or any of the Service at all times. Licensor may change or discontinue any aspects of the Service at any time and may impose limits or restrict your access to any part of the Service. In the event you require technological assistance while using the Service, you may contact Licensor directly using the contact information and method provided on www.TradeAutoX.com. Licensor does not guarantee resolution of any technical issue.

CANCELLATION OR TERMINATION OF SUBSCRIPTION

Licensor may terminate any subscription and use of the Service for any reason with thirty (30) days’ notice to the Subscriber. Subscriber may terminate its subscription and use of the Service for any reason with thirty (30) days’ notice to the Licensor. Licensor may terminate any subscription or use of the service “for cause” immediately and without notice to Subscriber, in the event that Subscriber engages in any of the proscribed behaviors set forth the section of this Agreement regarding “Provision and Use of Service”, above. In any event of termination, Subscriber shall be responsible for the following month’s fee and will not be entitled to a pro rata reimbursement of any monthly fees.

MODIFICATION TO TERMS

Licensor reserves the right to update and change the Terms and Conditions without notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Terms and Conditions. Continued use of the Service after any such change shall constitute your consent to such changes and continued access to the Service shall constitute valid consideration for the acceptance of any such amended or altered Terms and Conditions.

CONFIDENTIALITY AND NON-DISCLOSURE

The parties acknowledge that, during the term of this Agreement and in connection with the performance of their duties and responsibilities hereunder, each (the “Receiving Party”) will have access to and become acquainted with, either directly or indirectly, in writing or orally, “Confidential Information,” as defined below, owned, licensed or used by the other (the “Disclosing Party”) in connection with the operation of its business.

A. Definition of “Confidential Information”

“Confidential Information” includes, but is not limited to, in any medium, any proprietary information, technical data, trade secrets, know how, research, product plans, products, services, customer/client lists, customer/client identities and contact information, markets, software, developments, inventions, innovations, processes, formulas, specifications, technology, designs, recordings, photographs, videos, drawings, engineering, hardware configuration information, marketing, and finances or other business information. Confidential Information shall not include any of the foregoing items already in possession of or known by the Receiving Party through no wrongful act of the Receiving Party and not in violation of any other non-disclosure or confidentiality agreement, or any of the foregoing items that, through no wrongful act of the Receiving Party, have become publicly known and generally available.

B. No Representation of Accuracy Concerning Confidential Information

The Receiving Party understands that the Disclosing Party has not made and does not make any representation or warranty, express or implied, concerning the accuracy or completeness of the Disclosing Party’s Confidential Information. The Disclosing Party shall not have any liability whatsoever to the Receiving Party concerning or resulting from Receiving Party’s use of the Disclosing Party’s Confidential Information, or from any errors therein or omissions therefrom. The Receiving Party shall assume full responsibility for all conclusions it draws from any Confidential Information it receives from the Disclosing Party.

C. Restricted Use and Retention of Confidential Information

  1. Restricted Use of Confidential Information
    The Receiving Party shall not, in any manner, either during the term of this Agreement or at any time thereafter, disclose the Confidential Information of the Disclosing Party except as required by law or as permitted by the Disclosing Party; provided, however, that the Receiving Party immediately shall notify the Disclosing Party so that the Disclosing Party shall have an opportunity to take any legal action that the Disclosing Party deems necessary to preserve the confidentiality of the Confidential Information. The Receiving Party may use the Confidential Information of the Disclosing Party only for the purposes for which it was provided to the Receiving Party and not for any other purpose.

  2. Retention of Confidential Information
    All Confidential Information shall remain the exclusive property of the Disclosing Party. The Receiving Party shall not retain any copies of the Disclosing Party’s Confidential Information without the Disclosing Party’s express written consent. Upon the termination of this Agreement for any reason, or whenever requested by the Disclosing Party, the Receiving Party shall immediately deliver to the Disclosing Party all files, records, documents, specifications, information and any other items in the Receiving Party’s possession or under the Receiving Party’s control, in any medium they are kept, all of the Disclosing Party’s Confidential Information.

COVENANT NOT TO COMPETE

Subscriber shall not, during the Restricted Period defined below, without the prior written consent of Licensor, compete with Licensor in providing a SaaS in the document destruction industry similar to that Licensor and its successors and assigns offer or provide during the term of this Agreement (the “Competing Services”). The foregoing restriction against competition shall be in force during the terms of this Agreement and for a period of one year thereafter (the “Restricted Period”).

The term “not compete,” as used in this section, means that, with respect to any person or entity providing the same or substantially similar services as Licensor’s Competing Services, Subscriber shall not:

  1. Serve as a partner, an employee, a consultant, an officer, a director, a manager, an agent, an associate, an investor or otherwise;
  2. Directly or indirectly own, purchase, organize or take preparatory steps for same; and
  3. Build, design, finance, acquire, lease, operate, manage, invest in, work with or consult, or otherwise affiliate.

Subscriber acknowledges that Licensor’s business is national in scope and without geographical limitation notwithstanding the state of Licensor’s organization or the location of Licensor’s headquarters or the location of any of its member, executives or employees, and that Licensor has and will have business activities, and has and will have, throughout the U.S., valuable business relationships regarding the Competing Services. Accordingly, Subscriber’s prohibition on competing with Licensor’s Competing Services covers the U.S. and all of its territories.

EQUITABLE REMEDIES

The parties acknowledge that the extraordinary and unique character of the Competing Services and of the rights and privileges afforded hereunder give them value the loss of which cannot be reasonably or adequately compensated by damages awarded in an action at law, and that the breach by either party of any of the provisions of this Agreement will cause the other party irreparable injury and damage. As such, the parties expressly agree that the aggrieved party shall be entitled to injunctive and other equitable relief in the event of, or to prevent, a breach of any provision of this Agreement; provided, however, that the aggrieved party’s resort to such equitable relief shall not be construed to be a waiver of any other rights or remedies that the aggrieved party may have for damages or otherwise. The various rights and remedies of the parties under this Agreement or otherwise shall be construed to be cumulative; no one of them shall be exclusive of any other, or of any other right or remedy allowed by law. No bond or other security shall be required of the aggrieved party to obtain such equitable relief. The parties consent to the issuance of such injunction and to the ordering of specific performance.

INDEMNITY

You shall defend, indemnify, and hold Licensor, its subsidiaries, affiliates, officers, agents, members, managers, and employees, harmless from any claim, loss, cost, demand, liability, and expense, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Service.

LIMITATION OF LIABILITY

IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM SUBSCRIBER HEREUNDER DURING THE SIX (6) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.

IN NO EVENT SHALL LICENSOR HAVE ANY LIABILITY TO SUBSCRIBER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

INDEPENDENT CONTRACTORS

The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.

NOTICES

Notices shall be in writing (email permitted) and effective upon receipt.

AMENDMENTS

No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties.

JURISDICTION AND GOVERNING LAW

Any claims by either party to enforce or construe any right granted under these Terms and Conditions or to assert any claim arising from or related to the Services Product shall be brought exclusively in the form or Arbitration brought in accordance with and pursuant to the rules of the National Auto Action Association (“NAAA”) Arbitration Policy and, except as required otherwise by the NAAA Arbitration Policy, shall be brought in the State of Georgia, in the county of Fulton. In connection with any such action, you consent to arbitration under the NAAA Arbitration Policy as the sole mechanism for resolution of any claims or disputes arising from or related to the Services Product.. In any such action, you agree that, unless otherwise specified in the NAAA Arbitration Policy, the laws of the State of Georgia shall apply and shall govern the determination of the action, regardless of any conflicts of law.

SEVERABILITY

If any provision of this Agreement is found for any reason to be unlawful, void, or unenforceable, then that provision will be given its maximum enforceable effect, or shall be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provision.

WAIVER

Any failure by Licensor to enforce any term of this Agreement against you or any other subscriber shall not be considered a waiver of Licensor’s right to enforce this Agreement as to any future violations committed by you or any other subscriber.

ASSIGNMENT

Neither party may assign any of its rights or obligations hereunder, whether by operating of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Licensor may delegate portions of its obligations relating to the Service Product to its contractors. Any attempted assignment in breach of this section shall be void.

SCHEDULE A

LEGITIMATE USE OF AND PURPOSE FOR THE TRADEAUTOX PLATFORM

  1. This listing for sale, on a wholesale basis, of automobiles for sale by automobile dealerships;
  2. The purchase and/or sale of automobiles, on a wholesale bases, between an among automobile dealerships;

SCHEDULE B

[intentionally left blank]

SCHEDULE C

SERVICE AND SUBSCRIPTION FEES

Subscription Fees:
The Subscription Fees shall be as follows, unless Licensor and Subscriber otherwise agree in writing: $595/Month

Other Fees:
Subscriber will pay 2.9% if using a credit card to complete a transaction. Subscriber will pay 1.5% for any transaction that utilizes Floor Plan or ACH.

SCHEDULE D

PAYMENT PROCESSING TERMS

This TradeAutoX HOSTED SOFTWARE SERVICES AND SUBSCRIPTION AGREEMENT, along with this Schedule D and the other Schedules appended thereto, and the agreements, policies, and documents incorporated herein, (collectively, the “Agreement”), is entered into by and between TradeAutoX (as defined herein) (“TradeAutoX,” “we,” or “our”) and the entity or individual who enters into this Agreement (“Service Provider” or “you”). This Agreement sets out the terms and conditions under which you may utilize the TradeAutoX Payment Services.

This Agreement becomes a legally binding contract and is effective as of the earliest date you do any of the following (the “Effective Date”):

  1. Create an account on the TradeAutoX website;
  2. Accept this Agreement online; or
  3. Begin using the TradeAutoX Payment Services.

This Agreement, as it may be amended from time to time, will be available on the TradeAutoX website. In addition to the terms of this Agreement, you agree to be bound by the terms of our Privacy Policy and Acceptable Use Policy, as well as your applicable Bank Agreement(s), which are incorporated herein by this reference.

Please be advised that this Agreement contains provisions, including an Agreement to Arbitrate, that govern how claims you and TradeAutoX have against each other are resolved, which will, with limited exception, require the parties to submit claims they may have against one another to binding and final arbitration. Under the Agreement to Arbitrate, the parties will (1) only be permitted to pursue claims against each other on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.

Agreement

Section 1 — TradeAutoX Payment Services

1.01 “TradeAutoX Payment Service(s)” means the Payment Processing Services or Gateway Services defined as follows:

(a) “Payment Processing Services” means the payment processing services offered by TradeAutoX which provide service providers with the ability to accept credit cards, debit cards, and other payment methods on a website or mobile application. These services include Gateway Services, a bank-sponsored merchant account, fraud protection tools, recurring billing functionality, payment card storage, foreign currency acceptance, white glove customer support, and other software, APIs and services and technology as described on the TradeAutoX website.

(b) “Gateway Services” means the gateway services offered by TradeAutoX which provide Service providers with the software and connectivity required to allow real-time secure data transmission for processing of credit and debit card payments on a website or mobile application.

Section 2 — Fees and Taxes

2.01 Fees. In exchange for us providing you with the TradeAutoX Payment Services, you agree to pay us the fees, including applicable transaction, multi-currency and Chargeback fees, as listed in the fee schedule and incorporated herein by this reference. We reserve the right to revise our fees at any time, subject to a thirty (30) day notice period to you prior to the new fees taking effect. Interest shall accrue at the lower rate of 1.5% per month, or the maximum amount permitted by law, on all overdue amounts. In the event that you have a good faith dispute as to the amounts due, you agree to pay the undisputed amounts. Interest shall not accrue on any disputed amounts so long as you pay such amounts within thirty (30) calendar days after resolution of the dispute.

2.02 Payment of Fees, Payouts, and Right to Set-off. Subject to the terms of this Agreement, TradeAutoX will send to your Bank Account all amounts due to you from your Transactions, minus any fees, Reversals, Invalidated Payments, Chargebacks, Refunds or other amounts that you owe to TradeAutoX under this Agreement after, and only after final clearance of relevant payments by the financial institutions through whom said funds are settled, which may take two (2) or more business days. If the Payout is not sufficient to cover the amounts due, you agree that we may debit your Bank Account for the applicable amounts, and/or set-off the applicable amounts against future Payouts. Upon TradeAutoX’ request, you agree to provide TradeAutoX with all necessary bank account routing and related information and grant TradeAutoX permission to debit amounts due from your Bank Account. TradeAutoX does not make and hereby disclaims any warranties or representations regarding the timing of availability of funds transacted through the TradeAutoX Payment Services.

2.03 Taxes. Service Provider shall pay, indemnify, and hold TradeAutoX harmless from (i) any sales, use, excise, import or export, value-added, or similar tax or duty, and any other tax or duty not based on TradeAutoX’ income, and (ii) all government permit fees, customs fees and similar fees which TradeAutoX may incur with respect to this Agreement. Such taxes, fees and duties paid by Service Provider shall not be considered a part of, a deduction from, or an offset against, payments due to TradeAutoX hereunder.

Section 3 —Restricted Activities, Representations and Warranties

3.01 Restricted activities. In connection with your use of the TradeAutoX Payment Services, you must comply with the TradeAutoX Acceptable Use Policy contained in Schedule A to the Agreement. You further agree that you will not:

(a) Breach this Agreement, your Bank Agreement, or any other agreement that you have entered into with us in connection with the TradeAutoX Payment Services;

(b) Violate any federal, state, or local laws, rules, or regulations applicable to your business;

(c) Violate any rule, guideline, or bylaw of any of the Associations (the “Association Rules”), as they may be amended by the Associations from time to time. Some of the Association Rules are available for Visa, Mastercard, American Express, and Discover.

(d) Fail to provide us with any information that we reasonably request about you or your business activities, or provide us with false, inaccurate or misleading information;

(e) Refuse to cooperate in a legal investigation or audit that may be required by the Associations;

(f) Integrate or use any of the TradeAutoX Payment Services without complying with our requirements;

(g) Utilize recurring billing functionality without properly obtaining your customers’ consent to be billed in such a manner;

(h) Submit any Transaction for processing through the TradeAutoX Payment Services which does not represent a bona fide, permissible Transaction as outlined in this Agreement and in the Association Rules, or which inaccurately describes the product or services being sold or the charitable donations being made; and

(i) Process Transactions or receive payments on behalf of any other party, or redirect payments to any other party.

3.02 Representations and Warranties by Service Provider. Service Provider has the full power and authority to execute, deliver and perform this Agreement. This Agreement is binding and enforceable against Service Provider and no provision requiring Service Provider’s performance is in conflict with its obligations under any agreement to which Service Provider is a party.

Service Provider is duly organized, authorized and in good standing under the laws of the state, region or country of its organization and is duly authorized to do business in all other states, regions or countries in which Service Provider’s business operates.

Section 4 — Liability for Invalidated Payments and other Liabilities

You are liable for all claims, expenses, fines and liability we incur arising out of:

(a) a Chargeback, Refund, over-payment, payment error, or other invalid payment you cause (collectively “Invalidated Payment”);

(b) any error, negligence, misconduct or fraud by you, your employees, or someone acting on your behalf; and

(c) any losses resulting from your failure to comply with the terms of this Agreement, or your usage of the TradeAutoX Payment Services.

In the event of an Invalidated Payment or other liability, we may deduct the amounts due to TradeAutoX from your Payouts.

Section 5 — Actions We May Take

5.01 Credit Report Authorization and Verification of Information. You authorize TradeAutoX, directly or through third parties, to make any inquiries or take any actions we consider necessary to validate your identity, evaluate your creditworthiness, and verify information that you have provided to us. You authorize TradeAutoX to obtain financial and credit information, such as pulling your personal credit report, or the credit report for your directors, officers, and principals. By completing your application to become a TradeAutoX customer, you are providing TradeAutoX with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports.

In the event that we are unsuccessful in receiving satisfactory information for us to verify your identity or determine that you are creditworthy, TradeAutoX reserves the right to terminate this Agreement with immediate notice to you, cease to provide access to the TradeAutoX Payment Services, and refuse or rescind any payment by your customers.

5.02 Actions by TradeAutoX. If we believe that your Transactions pose an unacceptable level of risk, that you have breached the terms of this Agreement, or that your account has been compromised, we may take various actions to avoid liability. The actions we may take include, but are not limited to, suspending or limiting your ability to use the TradeAutoX Payment Services, refusing to process any Transaction, reversing a Transaction, holding your Payouts, and contacting your customers to verify Transactions and reduce potential fraud and disputes. If possible, we will provide you with advance notice of our actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.

5.03 Reserves. TradeAutoX, in its sole discretion, may place a Reserve on a portion of your Payouts in the event that we believe that there is a high level of risk associated with your business. If we place a reserve on your Payouts, we will provide you with notice specifying the terms of the Reserve. The terms may require that a certain percentage of your Payouts are held for a certain period of time, that a fixed amount of your Payouts are withheld from payout to you, or such other restrictions that TradeAutoX determines in its sole discretion. TradeAutoX may change the terms of the Reserve at any time by providing you with notice of the new terms.

TradeAutoX may hold a Reserve as long as it deems necessary, in its sole discretion, to mitigate any risks related to your Transactions. You agree that you will remain liable for all obligations related to your Transactions even after the release of any Reserve. In addition, we may require you to keep your Bank Account available for any open settlements, Chargebacks and other adjustments.

5.04 Security Interest. To secure your performance of this Agreement, you grant to TradeAutoX a legal claim to the funds held in the Reserve. This is known in legal terms as a “lien” on and “security interest” in these amounts.

Section 6 – Account Security, Data

6.01 Security of your access. You agree to:

(a) Not allow anyone else to have or use your password details and to comply with all reasonable instructions we may issue regarding account access and security. In the event you share your password details, TradeAutoX will not be liable to you for losses or damages;

(b) Keep your personal details up to date. We may be unable to respond to you if you contact us from an address, telephone number or email account that is not registered with us; and

(c) Take all reasonable steps to protect the security of the personal electronic device through which you access the TradeAutoX Payment Services (including, without limitation, using PIN and/or password protected personally configured device functionality to access the TradeAutoX Payment Services and not sharing your device with other people).

6.02 Data Security Compliance. Service Provider agrees to comply with applicable data privacy and security requirements under the Payment Card Industry Data Security Standard (“Association PCI DSS Requirements”) with regards to Service Provider’s use, access, and storage of certain credit card non-public personal information on behalf of TradeAutoX. Additionally, Service Provider agrees to comply with its obligations under any applicable law or regulation as may be in effect or as may be enacted, adopted or determined regarding the confidentiality, use, and disclosure of cardholder information.

6.03 Ownership of Data. All Customer Data shall be owned by Service Provider and Service Provider hereby grants TradeAutoX a perpetual, irrevocable, sub-licensable, assignable, worldwide, royalty-free license to use, reproduce, electronically distribute, and display Customer Data for the following purposes: (i) providing and improving the TradeAutoX Payment Services; (ii) internal usage, including but not limited to, data analytics and metrics so long as such Customer Data has been anonymized and aggregated with other customer data; (iii) complying with applicable legal requirements and assisting law enforcement agencies by responding to requests for the disclosure of information in accordance with local laws; and (iv) any other purpose for which consent has been provided by the Customer.

Section 7 - Indemnification, Limitation of Liability, Disclaimer of Warranties

7.01 Indemnification. Service Provider agrees to indemnify, defend, and hold harmless TradeAutoX, its parent, affiliates, officers, directors, agents, employees and suppliers from and against any lawsuit, claim, liability, loss, penalty or other expense (including attorneys’ fees and cost of defense) they may suffer or incur as a result of (i) your breach of this Agreement or any other agreement you enter into with TradeAutoX or its suppliers in relation to your use of the TradeAutoX Payment Services; (ii) your use of the TradeAutoX Payment Services; and/or (iii) your violation of any applicable law, regulation, or Association Rules and requirements.

7.02 LIMITATION OF LIABILITY. TRADEAUTOX SHALL NOT BE LIABLE TO YOU OR A THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRADEAUTOX PAYMENT SERVICES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER BASED ON BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHER CAUSE OF ACTION (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF DATA, GOODWILL, PROFITS, INVESTMENTS, USE OF MONEY, OR USE OF FACILITIES; INTERRUPTION IN USE OR AVAILABILITY OF DATA; STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS; OR LABOR CLAIMS), EVEN IF TRADEAUTOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL TRADEAUTOX’S TOTAL AGGREGATE LIABILITY TO MERCHANT OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE DIRECT DAMAGES SUFFERED BY SUCH PARTY IN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY MERCHANT TO TRADEAUTOX UNDER THIS AGREEMENT DURING THE FIRST TWELVE (12) MONTH PERIOD AFTER THE EFFECTIVE DATE OF THIS AGREEMENT.

7.03 DISCLAIMER OF WARRANTIES. THE TRADEAUTOX PAYMENT SERVICE IS PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. TRADEAUTOX DISCLAIMS ALL WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, TO MERCHANT AS TO ANY MATTER WHATSOEVER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TRADEAUTOX OR ITS EMPLOYEES OR REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF TRADEAUTOX’S OBLIGATIONS.

The parties acknowledge that the TradeAutoX Payment Service is a computer network based service which may be subject to outages and delay occurrences. As such, TradeAutoX does not guarantee continuous or uninterrupted access to the TradeAutoX Payment Services. Service Provider further acknowledges that access to the TradeAutoX website or to the TradeAutoX Payment Services may be restricted for maintenance. TradeAutoX will make reasonable efforts to ensure that Transactions are processed in a timely manner; however, TradeAutoX will not be liable for any interruption, outage, or failure to provide the TradeAutoX Payment Services.

8. General Provisions

8.01 Amendment. We may amend this Agreement at any time by posting a revised version of it on our website. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will provide you with 30 days’ prior notice of any substantial change by posting notice under the “Policy Updates” section of our website. If you do not agree to the updated terms, you can terminate your Agreement by providing us with notice in the manner indicated this Agreement. If you provide us with termination notice within 30 days of the date of update, then your current terms and conditions shall apply during this notice period.

8.02 Survival. Sections 2 (Fees and Tax), 4 (Liability for Chargebacks, Invalidated Payments and other Liabilities), 5 (Actions We May Take), 6.08 (Confidential Information), 7 (Indemnification, Limitation of Liability, Disclaimer of Warranties), 8 (General Provisions), and 9 (Definitions), as well as any other terms which by their nature should survive, will survive the termination of this Agreement.

8.03 Communication; Recording Calls; and Availability of Contractual Documents. You consent to receive autodialed or prerecorded calls and text messages from TradeAutoX at any telephone number that you have provided us or that we have otherwise obtained to (i) notify you regarding your account; (ii) collect a debt; (iii) resolve a dispute; (iv) contact you about exclusive offers; or (v) as otherwise necessary to service your account or enforce the Agreement. Standard telephone minute and text charges may apply.

We may share your telephone numbers with our service providers (such as billing or collections companies) who we have contracted with to assist us in pursuing our rights or performing our obligations under the Agreement, our policies, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

TradeAutoX may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with TradeAutoX or its agents for quality control and training purposes or for its own protection.

If you have a question or complaint relating to the TradeAutoX Payment Services or your Transactions, please contact the TradeAutoX customer support as defined in the “Contact” tab of the TradeAutoX website.

The general terms and conditions for the TradeAutoX Payment Services will be available at all times on the TradeAutoX website, and/or be made available during signup process as an electronic copy per e-mail. You may request at any time free of charge electronic copy of your contractual documents.

8.04 Notices and Jurisdiction.

a. Notice to Service Provider. Service Provider agrees that TradeAutoX may provide notices and disclosures to Service Provider by posting them on TradeAutoX’s website, emailing them to Service Provider, or sending them to Service Provider through postal mail. Notices sent to Service Provider by postal mail are considered received by Service Provider within three (3) Business Days of the date TradeAutoX sends the notice unless it is returned to TradeAutoX. Disclosures and notices posted on TradeAutoX’s website or emailed shall be considered to be received by you within 24 hours of the time it is posted to our website or emailed to you unless we receive notice that the email was not delivered. Furthermore, you understand and agree that if TradeAutoX sends you an email but you do not receive it because your primary email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic communications, TradeAutoX will be deemed to have provided the communication to you. In addition, TradeAutoX may send Service Provider emails, including, but not limited to, those relating to product updates, new features and offers and Service Provider hereby consents to such email notification. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with a paper copy.

b. Notice to TradeAutoX. Notice to TradeAutoX shall be considered valid only if sent by postal mail to the applicable address for notice as designated in the below chart and based off of your country of domicile.

c. Jurisdiction. This Agreement shall be subject to the laws of the state of Georgia in the United State of America. The courts of and/or for the state of Georgia shall have exclusive jurisdiction over all disputes arising in relation to this Agreement, except as provided in Section 9.10 of this Agreement.

8.05 Agreement to Arbitrate.

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL IMPACT HOW CLAIMS YOU AND TRADEAUTOX HAVE AGAINST EACH OTHER ARE RESOLVED.

You and TradeAutoX agree that any and all disputes or claims that have arisen or may arise between you and TradeAutoX shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this provision.

THE PARTIES ALSO AGREE THAT YOU AND TRADEAUTOX MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND TRADEAUTOX AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER TRADEAUTOX SERVICE PROVIDERS.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s rules. All issues are for the arbitrator to decide, except that issues relating to arbitrability, or the scope or enforceability of this Agreement to Arbitrate, shall be for a court of competent jurisdiction to decide. If a court decides that any part of this Section 8.05 is invalid or unenforceable, the other parts of this Section 8.05 shall still apply.

The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or TradeAutoX may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and TradeAutoX subject to the discretion of the arbitrator(s) to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or TradeAutoX may attend by telephone, unless required otherwise by the arbitrator(s).

The arbitrator(s) will decide the substance of all claims in accordance with the laws of the State of Delaware, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator(s) shall not be bound by rulings in prior arbitrations involving different service providers, but is/are bound by rulings in prior arbitrations involving the same service provider to the extent required by applicable law. The arbitration award shall be final and binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

9. Definitions

“Agreement” means this TradeAutoX Payment Services Agreement, including all exhibits and other agreements and documents incorporated herein.

“Associations” means, collectively, Visa, Mastercard, Discover, American Express, any ATM or debit network, and the other financial service card organizations.

“Association PCI-DSS Requirements” has the definition ascribed to such term in Section 6.02.

“Association Rules” has the definition ascribed to such term in Section 3.01(c).

“Bank Account” means the bank account that you specify to receive your Payouts.

“Bank Agreement” means the agreement provided by the financial institution that is providing the acquiring services.

“Business Day” means a day where banks are generally open in the United States.

“Chargeback” means a challenge to a payment that a buyer files directly with his or her credit or debit card issuer.

“Confidential Information” has the definition ascribed to such term in Subsection A of the Confidentiality and Non-Disclosure Section of the Terms and Conditions.

“Control Panel” is the user interface for the TradeAutoX Payment Services.

“Customer(s)” means the customer of the Service Provider.

“Customer Data” means all information that Customer provides in the course of making a payment to you.

“Intellectual Property” means all of the following owned by a party: (a) trademarks and service marks (registered and unregistered) and trade names, and goodwill associated therewith; (b) patents, patentable inventions, computer programs, and software; (c) databases; (d) trade secrets and the right to limit the use or disclosure thereof; (e) copyrights in all works, including software programs; and (f) domain names.

“Intellectual Property Rights” means the rights owned by a party in its Intellectual Property.

“Invalidated Payment” is defined in Section 4(a) above.

“Payout” means the amount due to you from your Transaction minus our fees and any Refunds, Chargebacks, Reversals, or other amounts due to TradeAutoX.

“Refund” means a refund issued by you through the TradeAutoX Control Panel or through your API access.

“Reserve” means an amount or percentage of your Payouts that we hold in order to protect against the risk of Reversals, Chargebacks, or any other risk, exposure and/or potential liability to us related to your use of the TradeAutoX Payment Services.

“Restricted Activities” means any breaches of our Acceptable Use Policy and any activity specified in Section 3.01.

“Reversal” means any payment that TradeAutoX reverses to your customer.

“Service Provider” or “you” means the entity and/or individual who enters into this Agreement. “TradeAutoX,” “we,” and “our” means TradeAutoX, LLC.

“Trademark(s)" is defined in the TRADEMARKS; INTELLECTUAL PROPERTY; PUBLICITY Section of the Terms and Conditions.

“Transaction” means a transfer of funds between you and a third party related to the sale of goods and/or services, or charitable donations.