Intellectual Property Agreement - Equifax Inc. and ChoicePoint Inc.
INTELLECTUAL PROPERTY AGREEMENT
BETWEEN
EQUIFAX INC.
AND
CHOICEPOINT INC.
_____________, 1997
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS......................................................2
SECTION 1.1. DEFINITIONS................................................2
ARTICLE II CONVEYANCE OF CERTAIN ASSETS; ASSUMPTION OF CERTAIN LIABILITIES.7
SECTION 2.1. CONVEYANCE OF TRANSFERRED ASSETS...........................7
2.1.1. General Intent................................................7
2.1.2. Transferred Equifax Assets....................................8
2.1.3. Transferred ChoicePoint Assets................................8
2.1.4. Assumption of Liabilities.....................................9
2.1.5. Completion of Transactions....................................9
ARTICLE III THIRD PARTY AGREEMENTS........................................10
SECTION 3.1. THIRD PARTY AGREEMENTS....................................10
SECTION 3.2. REQUIRED CONSENTS.........................................10
SECTION 3.3. DISCHARGE OF LIABILITIES..................................12
ARTICLE IV LICENSED MATERIALS.............................................12
SECTION 4.1. GRANT OF LICENSES BY EQUIFAX..............................12
SECTION 4.2. OWNERSHIP OF ENHANCEMENTS BY CHOICEPOINT..................15
SECTION 4.3. LICENSE TO EQUIFAX MARKS..................................15
SECTION 4.4. GRANT OF LICENSE BY CHOICEPOINT...........................16
SECTION 4.5. OWNERSHIP OF ENHANCEMENTS BY EQUIFAX......................18
SECTION 4.6. DATA......................................................18
SECTION 4.7. MUTUAL OBLIGATIONS........................................19
ARTICLE V THE CLOSING.....................................................19
SECTION 5.1. EQUIFAX DELIVERABLES......................................19
SECTION 5.2. CHOICEPOINT DELIVERABLES..................................19
SECTION 5.3. TERMINATION...............................................20
ARTICLE VI REPRESENTATIONS AND WARRANTIES.................................20
ARTICLE VII INDEMNIFICATION...............................................20
SECTION 7.1. CHOICEPOINT INDEMNIFICATION OF THE EQUIFAX GROUP..........20
SECTION 7.2. EQUIFAX INDEMNIFICATION OF THE CHOICEPOINT GROUP..........21
SECTION 7.3. INSURANCE AND THIRD PARTY OBLIGATIONS.....................21
ARTICLE VIII INDEMNIFICATION PROCEDURES...................................21
SECTION 8.1. NOTICE AND PAYMENT OF CLAIMS..............................21
SECTION 8.2. NOTICE AND DEFENSE OF THIRD PARTY CLAIMS..................21
ARTICLE IX CONFIDENTIALITY................................................23
SECTION 9.1. EXCLUSIONS................................................23
SECTION 9.2. CONFIDENTIALITY...........................................23
SECTION 9.3. EMPLOYEE CONFIDENTIALITY AGREEMENTS.......................24
SECTION 9.4. RIGHTS AND REMEDIES.......................................24
SECTION 9.5. COMPETITIVE ACTIVITIES....................................25
SECTION 9.6. NO IMPLIED RIGHTS.........................................25
ARTICLE X CONTINUED ASSISTANCE............................................26
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SECTION 10.1. CONTINUED ASSISTANCE AND TRANSITION......................26
SECTION 10.2. RECORDS AND DOCUMENTS....................................26
SECTION 10.3. LITIGATION COOPERATION...................................27
ARTICLE XI MISCELLANEOUS..................................................27
SECTION 11.1. EXPENSES.................................................27
SECTION 11.2. NOTICES..................................................27
SECTION 11.3. AMENDMENT AND WAIVER.....................................28
SECTION 11.4. ENTIRE AGREEMENT.........................................28
SECTION 11.5. PARTIES IN INTEREST......................................29
SECTION 11.6. FURTHER ASSURANCES AND CONSENTS..........................29
SECTION 11.7. SEVERABILITY.............................................29
SECTION 11.8. GOVERNING LAW............................................29
SECTION 11.9. COUNTERPARTS.............................................29
SECTION 11.10. DISPUTES................................................30
SECTION 11.11. FORCE MAJEURE...........................................30
SECTION 11.12. DOCUMENTATION...........................................31
SECTION 11.13. HEADINGS................................................31
EXHIBIT A - CHOICEPOINT GROUP
EXHIBIT B - EXCLUDED ASSETS
EXHIBIT C - CHOICEPOINT PRIMARY USE ASSETS
EXHIBIT D - CHOICEPOINT DATABASES
EXHIBIT E - CHOICEPOINT MARKS
EXHIBIT F - CHOICEPOINT COPYRIGHTS
EXHIBIT G - UTILITY SOFTWARE PROGRAMS
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THIS INTELLECTUAL PROPERTY AGREEMENT ("Agreement"), dated as of
________________, 1997, is entered into by Equifax Inc., a Georgia corporation
("Equifax"), and ChoicePoint Inc., a Georgia corporation ("ChoicePoint").
BACKGROUND
A. ChoicePoint is a wholly owned subsidiary of Equifax formed among other
reasons for the purpose of taking title to the intellectual property assets and
assuming the associated liabilities related to the business operations of the
ChoicePoint Group (as defined below).
B. The Board of Directors of Equifax has determined that it is in the best
interests of Equifax and its shareholders to transfer and assign to
ChoicePoint, as part of the contribution to the capital of ChoicePoint, certain
intellectual property assets used in the business operations of the ChoicePoint
Group as described herein and currently utilized to operate the ChoicePoint
Business (as defined below), and to receive in exchange therefor the
consideration described in the Distribution Agreement (as defined below).
C. The parties intend that the Distribution (as defined in the
Distribution Agreement) not be taxable to Equifax or its shareholders pursuant
to Section 355 of the Code (as defined below).
D. Equifax and its Affiliates (as defined below) own certain intellectual
property that is used in, or may be useful in, the conduct of the business
operations of the Equifax Group (as defined below) and/or the ChoicePoint
Group. Equifax and ChoicePoint have determined that (1) ownership of certain of
such intellectual property shall be transferred to the entity specified in this
Agreement on or before the Distribution Date (as defined below); (2) certain
intellectual property owned by Equifax and/or its Affiliates shall be licensed
to the entity(ies) specified in this Agreement on or before the Distribution
Date; and (3) the respective rights and obligations of Equifax and/or its
Affiliates under certain Third Party Agreements shall be acquired, assumed or
otherwise transferred to the entity(ies) specified in this Agreement, subject
to the consent of the applicable Third Party Provider.
E. The parties have determined that it is necessary and desirable to
describe the principal transactions required to effect the allocation of their
respective intellectual property rights in conjunction with the Distribution
and to set forth other agreements that will govern certain other matters
regarding the parties' respective intellectual property rights following the
Distribution.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements and covenants contained in this Agreement, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
As used herein, the following terms have the following meanings:
(a) "Action" means any claim, suit, arbitration, inquiry, proceeding
or investigation by or before any court, governmental or other regulatory or
administrative agency or commission or any other tribunal.
(b) "Affiliate" means, with respect to Equifax, any Person, which,
whether directly or indirectly, is Controlled by or is under common Control
with Equifax prior to the Distribution Date.
(c) "Ancillary Agreements" means all of the written agreements,
instruments, understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby, including without
limitation, the Distribution Agreement, Intercompany Information Services
Agreement and Transition Support Agreement.
(d) "Assets" means (i) all intellectual property rights in and to any
ideas, trade secrets, specifications, designs, masks, mask works, copyrights,
patents, Marks and other proprietary rights, of every kind and description,
wherever located, including without limitation, all electronic circuit designs,
works of authorship, databases, compositions of matter, computer software,
algorithms, and works of authorship expressing such algorithms, (ii) all
service, support and maintenance rights related thereto or attendant therewith,
and (iii) all contractual rights, commitments, undertakings and obligations
(including service, data processing, support and maintenance rights and
obligations) attendant therewith or directly related thereto, excluding the
ChoicePoint Marks.
(e) "ChoicePoint Business" means the businesses conducted by the
members of the ChoicePoint Group as of the Distribution Date and the
ChoicePoint UK Business.
(f) "ChoicePoint Copyrights" means the copyrights set forth on
Exhibit F.
(g) "ChoicePoint Databases" means the Databases set forth on Exhibit
D, that includes a listing of such Databases by name, by ChoicePoint
Application Code and/or by system identification designation.
(h) "ChoicePoint Enhancements" means software and/or associated
documentation created by or for any member of the ChoicePoint Group on or after
the Distribution Date, that provides processing capabilities, functionality or
efficiencies, maintenance, bug fixes or updates not contained in the
Transferred Equifax Assets on the Distribution Date and which is intended for
use with and requires a portion of the Transferred Equifax Assets in order to
function properly.
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(i) "ChoicePoint Group" means the entities set forth on Exhibit A.
(j) "ChoicePoint Indemnitees" has the meaning given in Section 7.2.
(k) "ChoicePoint Liabilities" means all unsatisfied Liabilities,
whether arising before, on or after the Distribution Date, based upon or
arising out of the use or possession by the ChoicePoint Group or ownership of
the Transferred Equifax Assets, the Licensed Equifax Materials or the Equifax
Marks, but excluding all liability arising out of or in connection with the
processing of data for members of the Equifax Group on the machine designated
the "REDD machine" in contravention of the terms of any license for software
program(s) operating on that machine at any time prior to the Distribution
Date.
(l) "ChoicePoint Marks" means the marks set forth on Exhibit E.
(m) "ChoicePoint UK" means ChoicePoint Limited, a corporation formed
under the laws of England.
(n) "ChoicePoint UK Business" means the business(es) intended by
ChoicePoint and Equifax to be conducted by ChoicePoint UK on the day after the
Distribution Date.
(o) "Closing Date" means the date designated by the Board of
Directors of Equifax to effect the transactions described in this Agreement.
(p) "Code" means the Internal Revenue Code of 1986, as amended.
(q) "Company Information" means collectively the Proprietary
Information and the Confidential Information of the disclosing party. Company
Information also includes information that has been disclosed to Equifax or any
of its Affiliates prior to the Distribution Date, or to any member of either
Group after the Distribution Date, by a third party subject to an obligation to
treat such information as confidential or secret.
(r) "Confidential Information" means any and all confidential
business information of the disclosing party that does not constitute
Proprietary Information and that is the subject of efforts by the disclosing
party that are reasonable under the circumstances to maintain its secrecy and
confidentiality, including without limitation, the existence and nature of the
relationship between the parties, employees of the disclosing party, and any
and all additional information disclosed by the disclosing party to the
receiving party as a result of the receiving party's access to and presence at
the disclosing party's facilities.
(s) "Control" means the ownership, directly or indirectly, of more
than fifty percent (50%) of the voting shares of an entity, or otherwise
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of an entity, or the power to veto
major policy decisions of any such entity, whether through the ownership of
voting securities by contract, or otherwise.
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(t) "Database" means a collection of data and/or files contained on
media, electronic or hardcopy, active or archived, constructed of fields of a
particular type, together with a collection of operations that facilitate
searching, sorting, recombination and similar activities.
(u) "Derivative Work" means a work based on one or more pre-existing
works, including without limitation, a condensation, transformation, expansion
or adaptation, that would constitute a copyright infringement if prepared
without authorization of the owner of the copyright of such pre-existing work.
(v) "Designated ChoicePoint Member" means a member of the ChoicePoint
Group, as designated by ChoicePoint in its sole discretion from time to time.
(w) "Designated Equifax Member" means a member of the Equifax Group,
as designated by Equifax in its sole discretion from time to time.
(x) "Disputes" has the meaning given in Section 11.10.
(y) "Distribution Agreement" means that certain Distribution
Agreement entered into on or prior to the Distribution Date between Equifax and
ChoicePoint, as amended from time to time.
(z) "Distribution Date" means the day as of which the Distribution
shall be effective, as determined by the Board of Directors of Equifax.
(aa) "Divested Business" means the sale or other transfer of a member
of either Group, or a portion of the business operations of any such member, to
an unrelated third party after the Distribution Date.
(bb) "Equifax Business" means the businesses now or formerly
conducted by Equifax and its present and former Affiliates, other than the
ChoicePoint Business, on the Distribution Date.
(cc) "Equifax Enhancements" means software and/or associated
documentation created by or for any member of the Equifax Group on or after the
Distribution Date, that provides processing capabilities, functionality or
efficiencies, maintenance, bug fixes or updates not contained in the
Transferred ChoicePoint Assets on the Distribution Date and which is intended
for use with and requires a portion of the Transferred ChoicePoint Assets in
order to function properly.
(dd) "Equifax Group" means Equifax and its Affiliates existing on the
Distribution Date and as modified from time to time thereafter, excluding all
members of the ChoicePoint Group.
(ee) "Equifax Indemnitees" has the meaning given in Section 7.1.
(ff) "Equifax Liabilities" means all unsatisfied Liabilities, whether
arising before, on or after the Distribution Date, based upon or arising out of
the use or possession by the Equifax
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Group or ownership of the Transferred ChoicePoint Assets or the Licensed
ChoicePoint Materials.
(gg) "Equifax Marks" means the Marks of the members of the Equifax
Group.
(hh) "Equifax Services" means Equifax Services Inc. (Georgia).
(ii) "Equifax Services Business" means the businesses conducted by
Equifax Services Inc. (Georgia) as of the Distribution Date and the ChoicePoint
UK Business, but excluding all of the businesses conducted by all other
Affiliates of Equifax Services Inc. (Georgia), including, without limitation,
subsidiaries of Equifax Services Inc. (Georgia).
(jj) "Excluded Assets" means assets which shall be excluded from the
Assets transferred to the ChoicePoint Group pursuant to this Agreement, even
though such Assets would qualify for transfer under the terms of this
Agreement, as set forth on Exhibit B.
(kk) "Group" means the ChoicePoint Group and/or the Equifax Group.
(ll) "Indemnifiable Losses" has the meaning given in Section 7.1.
(mm) "Indemnified Party" has the meaning given in Section 8.1.
(nn) "Indemnifying Party" has the meaning given in Section 8.1.
(oo) "Intercompany Information Services Agreement" means that certain
Intercompany Information Services Agreement entered into on or prior to the
Distribution Date between Equifax and ChoicePoint, as amended from time to
time.
(pp) "Liabilities" means any and all claims, debts, liabilities and
obligations, absolute or contingent, matured or not matured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, with
respect to a specified object, matter, contract, commitment or undertaking,
including without limitation, all claims, debts, liabilities and obligations
arising under any law, rule, regulation, action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, related thereto
or arising under any contract, commitment or undertaking relating to such
specified object, matter, contract, commitment or undertaking.
(qq) "Licensed ChoicePoint Materials" means that portion of the
Assets held by the ChoicePoint Group (excluding Third Party Rights and the
ChoicePoint Marks) after the Distribution Date (as such Assets are described in
this Agreement) that satisfy each of the following criteria: (i) such Assets
were used in the Equifax Business during the twelve (12) calendar months prior
to the Distribution Date and for which a continuing business requirement exists
on the Distribution Date, and (ii) such Assets or the services, information or
deliverables produced with such Assets (A) are not made commercially available
by the ChoicePoint Group to third parties on the Distribution Date, and (B) are
not made available to the Equifax Group after the Distribution Date pursuant to
the Intercompany Information Agreement or the Transition Support Agreement.
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(rr) "Licensed Equifax Materials" means that portion of the Assets
held by the Equifax Group (excluding Third Party Rights and the Equifax Marks)
after the Distribution Date (as such Assets are described in this Agreement)
that satisfy each of the following criteria: (i) such Assets were used in the
ChoicePoint Business during the twelve (12) calendar months prior to the
Distribution Date and for which a continuing business requirement exists on the
Distribution Date, and (ii) such Assets or the services, information or
deliverables produced with such Assets (A) are not made commercially available
by the Equifax Group to third parties on the Distribution Date, and (B) are not
made available to the ChoicePoint Group after the Distribution Date pursuant to
the Intercompany Information Agreement or the Transition Support Agreement.
(ss) "Licensed Materials" means the Licensed ChoicePoint Materials
and/or Licensed Equifax Materials.
(tt) "Marks" means trademarks, tradenames, and other slogans, designs
and distinctive advertising, whether or not registered or filed with any
governmental agency.
(uu) "Person" means an individual, partnership, joint venture,
association, corporation, limited liability company, trust or any other legal
entity.
(vv) "Proprietary Information" means all non-public information
whether tangible or intangible related to the services or business of the
disclosing party that (i) derives economic value, actual or potential, from not
being generally known to or readily ascertainable by another Person who can
obtain economic value from its disclosure or use; and (ii) is the subject of
efforts by the disclosing party that are reasonable under the circumstances to
maintain its secrecy, including without limitation, (A) marking any information
reduced to tangible form clearly and conspicuously with a legend identifying
its confidential or proprietary nature; (B) identifying any oral communication
as confidential immediately before, during, or after such oral communication;
or (C) otherwise treating such information as confidential or secret. Assuming
the criteria in clauses (i) and (ii) above are met, Proprietary Information
includes information, without regard to form, including, but not limited to,
technical and nontechnical data, databases, formulas, patterns, designs,
compilations, computer programs and software, devices, inventions, methods,
techniques, drawings, processes, financial data, financial plans, product
plans, lists of actual or potential customers and suppliers (which are not
commonly known by or available to the public), research, development, and
existing and future products.
(ww) "Representatives" means, individually and collectively,
officers, directors, employees, agents, and/or independent contractors of the
members of the Group.
(xx) "Required Consents" means any consents or approvals required to
be obtained (i) to allow the transfer of any Assets to and the assumption of
the obligations attendant therewith by a party and release of the transferring
party from such obligations; (ii) to allow a party to assume financial,
support, operational, management and/or administrative responsibility for the
Third Party Rights and the Third Party Software utilized in the operation of
the Equifax Business or ChoicePoint Business, respectively; (iii) for the
licensing, transfer and/or grant of the rights to the Equifax Group or
ChoicePoint Group, respectively, to use the Third Party Rights
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and the Third Party Software as contemplated by this Agreement; and/or (iv) for
a party to have access to and use of the space, equipment, software and/or
third party services provided under the Third Party Agreements entered into by
the other party as contemplated by this Agreement.
(yy) "Third Party Agreements" means those arrangements under which
Equifax or its Affiliates are provided and/or granted Third Party Rights
immediately prior to the Distribution Date.
(zz) "Third Party Claim" has the meaning given in Section 8.2.
(aaa) "Third Party Provider" means a Person other than a member of
either Group that provides products, software, services, maintenance and/or
support under a Third Party Agreement.
(bbb) "Third Party Rights" means rights to Assets (however described)
licensed or otherwise provided to Equifax and/or any of its Affiliates by Third
Party Providers.
(ccc) "Third Party Software" means all software programs (however
described) licensed to Equifax and/or any of its Affiliates by third parties
which are not members of either Group, and which are used internally by any
member of either Group.
(ddd) "Transferred Assets" means the Transferred Equifax Assets and
Transferred ChoicePoint Assets.
(eee) "Transferred Equifax Assets" means the Assets described in
Section 2.1.2.
(fff) "Transferred ChoicePoint Assets" means the Assets described in
Section 2.1.3.
(ggg) "Transition Support Agreement" means that certain Transition
Support Agreement entered into on or prior to the Distribution Date between
Equifax and ChoicePoint, as amended from time to time.
(hhh) "Utility Software Programs" means the software programs set
forth on Exhibit G.
ARTICLE II
CONVEYANCE OF CERTAIN ASSETS; ASSUMPTION OF
CERTAIN LIABILITIES
Section 2.1. Conveyance of Transferred Assets.
2.1.1. General Intent.
Except as otherwise expressly provided herein or in any of the
Ancillary Agreements, on the Distribution Date:
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(a) all Assets held by Equifax and its Affiliates that are used (i)
exclusively in the conduct of the ChoicePoint Business, (ii) primarily in the
conduct of the ChoicePoint Business, secondarily in the conduct of the Equifax
Business and scheduled on an Exhibit, (iii) as Databases supporting the
ChoicePoint Business scheduled on an Exhibit, and (iv) the ChoicePoint Marks,
are intended to be and shall become Assets of the ChoicePoint Group, except for
the Excluded Assets;
(b) all Liabilities held in the name of members of the ChoicePoint
Group or otherwise incurred with respect to the Assets described in Section
2.1.1.(a) above are intended to be and shall become exclusively the Liabilities
of ChoicePoint or the Designated ChoicePoint Member; and
(c) all other Assets and Liabilities of Equifax and its Affiliates
are intended to be and shall remain exclusively the Assets and Liabilities of
the Equifax Group.
2.1.2. Transferred Equifax Assets.
As of the Distribution Date and subject to Sections 2.1.4 and 2.1.5
and Article III hereof, Equifax agrees, at its expense, (i) to transfer, or
cause to be transferred, to ChoicePoint or to the Designated ChoicePoint Member
all right, title and interest held by Equifax and/or its Affiliates as of the
Distribution Date in and to each of the Assets (excluding Third Party Rights
and Marks) utilized by the members of the ChoicePoint Group described in each
of (A) through (C): (A) Assets used exclusively in the conduct of the
ChoicePoint Business immediately preceding the Distribution Date including the
ChoicePoint Copyrights listed on Exhibit F hereto, (B) Assets used primarily in
the ChoicePoint Business listed on Exhibit C hereto, and (C) Assets used as
ChoicePoint Databases supporting the ChoicePoint Business listed on Exhibit D
hereto; (ii) to transfer, or cause to be transferred, to or otherwise acquire,
purchase or secure for Equifax Services or ChoicePoint UK, as appropriate, all
Third Party Rights and Third Party Agreements, as appropriate, held by Equifax
and/or any of its Affiliates to the extent necessary to the conduct of the
Equifax Services Business during the twelve (12) calendar months prior to the
Distribution Date and for which a continuing business requirement exists on the
Distribution Date; and (iii) to transfer, or cause to be transferred, to
ChoicePoint or to the Designated ChoicePoint member all right, title and
interest held by Equifax and/or its Affiliates as of the Distribution Date in
and to the ChoicePoint Marks. In each of cases (i), (ii) and (iii), the
transfers shall be exclusive of the Excluded Assets.
2.1.3. Transferred ChoicePoint Assets.
As of the Distribution Date, and subject to Sections 2.1.4 and 2.1.5
and Article III hereof, ChoicePoint agrees to transfer, or cause to be
transferred, to Equifax or to the Designated Equifax Member all right, title
and interest held by the members of the ChoicePoint Group in and to all Assets
that (i) are not used by the members of the ChoicePoint Group exclusively in
the conduct of the ChoicePoint Business immediately preceding the Distribution
Date or listed on Exhibits C, D or F, and (ii) were used by members of the
Equifax Group in the conduct of the Equifax Business during the twelve (12)
calendar months prior to the Distribution Date and for which a continuing
business requirement exists on the Distribution Date. The expenses payable
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to third parties that are not members of either Group to effect such transfers
shall be the financial responsibility of Equifax.
2.1.4. Assumption of Liabilities
(a) As of the Distribution Date, Equifax shall, or shall cause the
Designated Equifax Member to, assume all payment and performance obligations
attendant with the Transferred ChoicePoint Assets and the Equifax Liabilities.
(b) As of the Distribution Date, ChoicePoint shall, or shall cause
the Designated ChoicePoint Member to, assume all payment and performance
obligations attendant with the Transferred Equifax Assets and the ChoicePoint
Liabilities.
2.1.5. Completion of Transactions.
(a) In the event that any conveyance of an Asset, provision of Third
Party Rights or Third Party Software, or assumption of any Liability, required
by this Agreement is not effected on the Distribution Date, the obligation to
transfer such Asset, provide such Third Party Rights or Third Party Software,
and assume such Liability shall continue past the Distribution Date and shall
be effected by the parties as soon thereafter as practicable.
(b) If any Transferred Asset may not be transferred or acquired by
reason of a requirement to obtain a Required Consent or any other approval of
any third party and such Required Consent or other approval has not been
obtained by the Distribution Date, then such Transferred Asset shall not be
transferred until such Required Consent or other approval has been obtained.
Equifax and ChoicePoint shall, and as the case may be, shall cause the member
of its respective Group which is the holder of such Transferred Asset prior to
transfer, to use all reasonable efforts to provide to the designated member of
the other Group, all the rights and benefits under such Transferred Asset and
cause such holder to enforce such Transferred Asset for the benefit of such
member of the other Group. Moreover, if any transfer of a Transferred Asset or
provision of a Third Party Right is not completed by the Distribution Date in
accordance with this Agreement for any reason, Equifax and ChoicePoint shall,
and shall cause the members of its Group to, cooperate in achieving a
reasonable alternative arrangement for the affected members of the Groups to
obtain the economic and operational equivalent of the intended transfer of such
Transferred Assets and/or provision of such Third Party Right and assumption of
the attendant Liabilities, with minimum interference to such members' business
operations until such transfer of such Transferred Assets and/or provision of
such Third Party Right is completed. The costs payable to third parties that
are not members of either Group to achieve any such reasonable alternative
arrangement shall be the financial responsibility of Equifax.
(c) From time to time on and after the Distribution Date, each party
shall promptly transfer, and cause the appropriate members of its Group
promptly to transfer, to the other party, or the designated member of the other
party's Group, any property and other benefits received by such party, or the
members of its Group, that are intended to be or are a Transferred Asset of the
other party under this Agreement. Without limiting the foregoing, funds
received by a member of either Group that belong to a member of the other Group
(whether by payment of accounts
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receivable, credits, rebates or other amounts, however described) shall be
delivered to the other Group by wire transfer not more than five (5) business
days after receipt of such payment.
(d) The obligation of Equifax to transfer, or cause to be
transferred, to or otherwise secure for Equifax Services and ChoicePoint UK the
Third Party Rights described in Section 2.1.2(ii) shall terminate with respect
to all such Third Party Rights held by Equifax and/or any of its Affiliates not
identified by Equifax Services to Equifax as necessary to the conduct of the
Equifax Services Business within twelve (12) months after the Distribution
Date.
ARTICLE III
THIRD PARTY AGREEMENTS
Section 3.1. Third Party Agreements.
(a) As a part of its obligations under Section 2.1.2(ii), Equifax
shall transfer, or cause to be transferred to Equifax Services or ChoicePoint
UK, as appropriate, the rights and obligations of Equifax and its Affiliates in
and to the Third Party Agreements that are a part of the Transferred Equifax
Assets, or otherwise secure appropriate rights to Third Party Software which is
the subject of such agreements for Equifax Services or ChoicePoint UK, as
appropriate, to the extent required by Section 2.1.2(ii) hereof.
(b) As part of its obligation under Section 2.1.3, ChoicePoint shall
transfer, or cause to be transferred, to Equifax or to a Designated Equifax
Member, the rights and obligations of the members of the ChoicePoint Group in
and to the Third Party Agreements that are a part of the Transferred
ChoicePoint Assets to the extent required by Section 2.1.3 hereof.
Section 3.2. Required Consents.
(a) Equifax with respect to Third Party Agreements in its name that
are a part of the Transferred Equifax Assets, and ChoicePoint with respect to
Third Party Agreements in its name that are a part of the Transferred
ChoicePoint Assets, shall, or shall cause the appropriate member of its
respective Group with respect to Third Party Agreements in their names that are
a part of the Transferred Assets to, use its best efforts to obtain the grant
to the appropriate member of the other Group, the Required Consents from the
Third Party Providers under such Third Party Agreements as necessary to effect
the provisions of this Agreement. Each party will provide the other party with
advice on its experience and agreements with the Third Party Providers with
regard to obtaining any Required Consent under such Third Party Agreements.
Equifax and ChoicePoint will each have management and administrative
responsibilities for obtaining all Required Consents under such Third Party
Agreements existing as of the Distribution Date to which a member of its
respective Group is a party. Equifax shall have the right of prior approval of
the terms upon which all Required Consents are obtained.
(b) Equifax shall bear the costs payable to third parties that are
not members of either Group, if any, of obtaining all Required Consents,
including without limitation, all charges and fees
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related to obtaining the Required Consents for the Third Party Agreements that
are a part of the Transferred Assets pursuant to this Agreement.
(c) Equifax and ChoicePoint shall use reasonable commercial efforts
to obtain all Required Consents with regard to Third Party Agreements that are
a part of the Transferred Assets within one hundred eighty (180) days after the
Distribution Date, unless otherwise agreed by the parties in writing. Until all
Required Consents are obtained, Equifax and ChoicePoint shall each periodically
publish a list setting forth the status of each Required Consent for which a
member of its respective Group is the contracting party immediately prior to
the Distribution Date. Equifax and ChoicePoint shall timely cooperate with each
other in order to facilitate the proper and timely publication of such periodic
Required Consents list. If any Required Consent is not obtained with respect to
any of the Third Party Agreements that are a part of the Transferred Assets,
the parties shall cooperate with each other in achieving a reasonable
alternative arrangement for the affected Group to continue to process its work
with minimum interference to its business operations until such Required
Consents are obtained, including without limitation, implementing the
provisions of Section 2.1.5(b). The cost payable to third parties that are not
a member of either Group of achieving such reasonable alternative arrangements
with respect to Third Party Rights that are a part of the Transferred Assets
shall be borne by Equifax.
(d) The financial obligations of Equifax under Sections 3.2(b) and
(c) for Required Consents and alternative arrangements, shall terminate with
respect to all such Required Consents and alternative arrangements not
identified by the parties to each other in a writing within twelve (12) months
after the Distribution Date, and for all Required Consents and alternative
arrangements identified thereafter, all such financial obligations shall be
borne by the party needing the Required Consent or alternative arrangement to
operate under or take assignment of the Third Party Agreement or to obtain such
Third Party Right for which such Required Consent or alternative arrangement is
required.
(e) After the Distribution Date, except as set forth in Sections
3.2(b) and 3.2(c) for Required Consent and alternative arrangements, Equifax
and ChoicePoint shall each bear financial responsibility and pay the Third
Party Providers, directly or indirectly through a third party, under all Third
Party Agreements transferred to its respective Group pursuant to Sections
3.1(a) and 3.1(b) above.
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(f) Equifax shall obtain all Required Consents necessary for the
Equifax Group to continue to have its data processed on the machine designated
the "REDD machine" after the Distribution Date. ChoicePoint shall, and shall
cause the members of the ChoicePoint Group to, cooperate with Equifax to secure
all such consents. ChoicePoint and members of ChoicePoint Group shall provide
such cooperation without charge to Equifax; provided, however, that Equifax
shall have the financial responsibility for all fees and charges payable to
third parties that are not members of either Group to obtain such Required
Consents.
Section 3.3. Discharge of Liabilities.
(a) ChoicePoint agrees that on and after the Distribution Date it
will timely pay, perform and discharge, or cause to be timely paid, performed
and discharged, all of the ChoicePoint Liabilities.
(b) Equifax agrees that on and after the Distribution Date it will
timely pay, perform and discharge, or cause to be timely paid, performed and
discharged, all of the Equifax Liabilities.
ARTICLE IV
LICENSED MATERIALS
Section 4.1. Grant of Licenses by Equifax.
(a) Equifax hereby grants, and will cause the other members of the
Equifax Group to grant, to ChoicePoint a fully paid, non-exclusive, perpetual,
worldwide, non-transferable source and object code license to use, modify,
improve, create Derivative Works and ChoicePoint Enhancements from, and
sublicense, the Licensed Equifax Materials (excluding the Utility Software
Programs) solely for use in the ChoicePoint Business and as that business may
evolve and change in the future, subject to the following:
(i) ChoicePoint shall not sublicense, or otherwise
disclose or distribute, or permit any Person to
use, the Licensed Equifax Materials (excluding
the Utility Software Programs), except in
accordance with Section 4.1(b);
(ii) ChoicePoint shall hold the Licensed Equifax
Materials (excluding the Utility Software
Programs) in strict confidence; will not remove
or destroy any proprietary markings of the
Equifax Group on or contained in the Licensed
Equifax Materials (excluding the Utility Software
Programs); and will include the copyright and
patent notices of the licensor as specified from
time to time by the licensor for the Licensed
Equifax Materials (excluding the Utility Software
Programs) on and in all copies of the Licensed
Equifax Materials (excluding the Utility Software
Programs);
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(iii) ChoicePoint shall not export or re-export the
Licensed Equifax Materials (excluding the Utility
Software Programs) without the appropriate United
States or foreign government licenses; and
(iv) all sublicenses from ChoicePoint to members of
the ChoicePoint Group (A) shall contain the
rights and restrictions set forth in this Section
4.1(a) with respect to the license granted to
ChoicePoint and comply with Sections 4.1(b)
through (d) hereof and (B) shall be diligently
enforced by ChoicePoint.
(b) The sublicense rights granted to ChoicePoint pursuant to Section
4.1(a) include the right for ChoicePoint to grant sublicenses to the Licensed
Equifax Materials (excluding the Utility Software Programs) to the members of
the ChoicePoint Group, which sublicenses may include the right to further
sublicense such Licensed Equifax Materials (excluding the Utility Software
Programs) to such Group member's customers solely for each such customer's
internal business purposes to the extent related to the ChoicePoint Business.
All sublicensing by ChoicePoint and other members of the ChoicePoint Group to
their customers shall be pursuant to written agreements with such customer,
executed before or at the time of furnishing each copy of the Licensed Equifax
Materials (excluding the Utility Software Programs) to such customer, and which
provide at a minimum that such customer:
(i) receives only a personal, non-transferable and
nonexclusive right to use such copy of the
Licensed Equifax Materials (excluding the Utility
Software Programs);
(ii) receives no title in the intellectual property
contained in the Licensed Equifax Materials
(excluding the Utility Software Programs);
(iii) will not copy the Licensed Equifax Materials
(excluding the Utility Software Programs), except
as necessary to use such Licensed Equifax
Materials (excluding the Utility Software
Programs) in accordance with the license grant
and to make one archival copy;
(iv) will not export or re-export the Licensed Equifax
Materials (excluding the Utility Software
Programs) without the appropriate United States
or foreign government licenses;
(v) will hold the Licensed Equifax Materials
(excluding the Utility Software Programs) in
confidence; will not reverse compile or
disassemble the Licensed Equifax Materials
(excluding the Utility Software Programs); will
not remove or destroy any proprietary markings of
the Group on or contained in the Licensed Equifax
Materials (excluding the Utility Software
Programs), and will include the copyright and
patent notices of the licensor as specified from
time to time by the licensor for the Licensed
Equifax Materials (excluding the Utility Software
Programs) on and in all
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copies of the Licensed Equifax Materials
(excluding the Utility Software Programs); and
(vi) will not sublicense, assign or otherwise transfer
the Licensed Equifax Materials (excluding the
Utility Software Programs) to any other Person.
(c) In the event any member of the ChoicePoint Group sublicenses any
portion of the Licensed Equifax Materials (excluding the Utility Software
Programs) to any third party pursuant to Section 4.1(a) and (b) above,
ChoicePoint agrees to ensure that such member shall diligently enforce the
terms and conditions of all sublicenses granted pursuant to this Section 4.1.
(d) In the event that ChoicePoint, or another member of the
ChoicePoint Group, shall enter into a Divested Business transaction with
respect to the ChoicePoint Group, and the scope of permitted use or other terms
applicable to the Licensed Equifax Materials (excluding the Utility Software
Programs) under the license or sublicenses granted in this Section 4.1 are
required to be modified to effect such transaction, Equifax will, or will cause
the sublicensor under the applicable sublicense to, agree to such modifications
to the extent (i) required for the transaction to be effected and (ii) not
materially detrimental to the interests of the Equifax Group. Such
modifications shall not be effective until the Divested Business or the
acquiror thereof, as required by Equifax, has entered into a license agreement
with the appropriate member of the Equifax Group incorporating the terms of
Section 4.1 and Section 4.2 and such other terms as Equifax reasonably deems
appropriate for the protection of its interests in the Licensed Equifax
Materials (excluding the Utility Software Programs).
(e) Equifax hereby grants, and will cause the other members of the
Equifax Group to grant, to ChoicePoint a fully paid, non-exclusive, perpetual,
worldwide, transferable, source and object code license to use, modify,
improve, create Derivative Works and ChoicePoint Enhancements from, and
sublicense, the Licensed Equifax Materials that are comprised of the Utility
Software Programs for any and all fields of use and to any and all Persons.
(f) The Licensed Equifax Materials may be marketed under such name
and in such manner as ChoicePoint chooses, consistent with the terms and
conditions of this Agreement.
(g) Except for the ChoicePoint Group's rights described in Section
4.1(a), (b) and (e) above, the Equifax Group's rights in and to the Licensed
Equifax Materials shall be and remain the exclusive property of Equifax or the
Designated Equifax Member.
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Section 4.2. Ownership of Enhancements by ChoicePoint.
(a) ChoicePoint, or the Designated ChoicePoint Member, shall own all
the modifications and improvements to, and the ChoicePoint Enhancements and/or
Derivative Works made from, the Licensed Equifax Materials developed by any
member of the ChoicePoint Group, or by any party other than a member of the
Equifax Group at the expense of the ChoicePoint Group. Equifax hereby assigns,
and shall cause each member of the Equifax Group to assign, to ChoicePoint, or
the Designated ChoicePoint Member, all right, title and interest it may hold in
such modifications, improvements, ChoicePoint Enhancements and Derivative
Works. ChoicePoint shall, or shall cause the Designated ChoicePoint Member to,
have the right to make and file all applications and other documents required
to register the copyright(s) and file for patents for such modifications,
improvements, ChoicePoint Enhancements and Derivative Works in its discretion
and at its sole cost and expense.
(b) Should ChoicePoint elect to file any application for the
registration, perfection or protection of any modifications, improvements,
ChoicePoint Enhancements or Derivative Works described in Section 4.2(a), under
any copyright, patent, semi-conductor chip protection or other law of any
country or jurisdiction, Equifax will, at the request and expense of
ChoicePoint, do all things and sign all documents or instruments reasonably
necessary in the opinion of ChoicePoint to assist in the registration of such
claims, file such applications, and obtain, defend and enforce such copyright,
patent, mask work and other rights.
(c) Subject to the license rights granted in Section 4.1, the Licensed
Equifax Materials shall be and shall remain the sole and exclusive property of
the Equifax Group and the members of the Equifax Group may make any internal
use and may commercially exploit any enhancements to the Licensed Materials
made or caused to be made by members of the Equifax Group, as they shall deem
appropriate without any obligation to any member of the ChoicePoint Group or
other restriction. The Equifax Group may in particular distribute and
manufacture, or cause to be manufactured or distributed by any third party, any
such enhancements and/or the Licensed Equifax Materials.
Section 4.3. License to Equifax Marks.
Equifax hereby grants, and will cause each member of the Equifax Group
to grant, to ChoicePoint and each member of the ChoicePoint Group a fully paid,
non-exclusive, worldwide, non-transferable right to continue to use the Equifax
Marks employed in the ChoicePoint Business, but only to the extent such Equifax
Marks were displayed by the ChoicePoint Group prior to the Distribution Date
(a) on the Transferred Equifax Assets, (b) on premises jointly occupied with
Equifax, and (c) on letterhead, product and services documentation, invoices,
software programs, packaging and similar materials used by the members of the
ChoicePoint Group, and such Equifax Marks are used in accordance with the
guidelines for usage of the Equifax Marks published and amended by Equifax from
time to time. ChoicePoint will terminate the use of such Equifax Marks as soon
as commercially practical but in any event within twelve (12) months after the
Distribution Date.
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Section 4.4. Grant of License by ChoicePoint.
(a) ChoicePoint hereby grants, and will cause the other members of the
ChoicePoint Group to grant, to Equifax a fully paid, non-exclusive, perpetual,
worldwide, non-transferable license to use, modify, improve, create Derivative
Works and Equifax Enhancements from, and sublicense, the Licensed ChoicePoint
Materials (excluding the Utility Software Programs) solely for use in the
Equifax Business and as that business may evolve and change in the future,
subject to the following:
(i) Equifax shall not sublicense, or otherwise
disclose or distribute, or permit any Person to
use, the Licensed ChoicePoint Materials
(excluding the Utility Software Programs), except
in accordance with Section 4.4(b);
(ii) Equifax shall hold the Licensed ChoicePoint
Materials (excluding the Utility Software
Programs) in strict confidence; will not remove
or destroy any proprietary markings of the
ChoicePoint Group on or contained in the Licensed
ChoicePoint Materials (excluding the Utility
Software Programs); and will include the
copyright and patent notices of the licensor as
specified from time to time by the licensor for
the Licensed ChoicePoint Materials (excluding the
Utility Software Programs) on and in all copies
of the Licensed ChoicePoint Materials (excluding
the Utility Software Programs);
(iii) Equifax shall not export or re-export the
Licensed ChoicePoint Materials (excluding the
Utility Software Programs) without the
appropriate United States or foreign government
license; and
(iv) all sublicenses from Equifax to members of the
Equifax Group (A) shall contain the rights and
restrictions set forth in this Section 4.4(a)
with respect to the license granted to Equifax
and comply with Sections 4.4(b) through (d)
hereof and (B) shall be diligently enforced by
Equifax.
(b) The sublicense rights granted to Equifax pursuant to Section
4.4(a) include the right for Equifax to grant sublicenses to the Licensed
ChoicePoint Materials (excluding the Utility Software Programs) to the members
of the Equifax Group, which sublicenses may include the right to further
sublicense such Licensed ChoicePoint Materials (excluding the Utility Software
Programs) to such Group member's customers solely for each such customer's
internal business purposes to the extent related to the Equifax Business. All
sublicensing by Equifax and other members of the Equifax Group to their
customers shall be pursuant to written agreements with such customer, executed
before or at the time of furnishing each copy of the Licensed ChoicePoint
Materials (excluding the Utility Software Programs) to such customer, and which
provide at a minimum that such customer:
(i) receives only a personal, non-transferable and
nonexclusive right to use such copy of the
Licensed ChoicePoint Materials (excluding the
Utility Software Programs);
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<PAGE> 20
(ii) receives no title in the intellectual property
contained in the Licensed ChoicePoint Materials
(excluding the Utility Software Programs);
(iii) will not copy the Licensed ChoicePoint Materials
(excluding the Utility Software Programs), except
as necessary to use such Licensed ChoicePoint
Materials (excluding the Utility Software
Programs) in accordance with the license grant
and to make one archival copy;
(iv) will not export or re-export the Licensed
ChoicePoint Materials (excluding the Utility
Software Programs) without the appropriate United
States or foreign government licenses;
(v) will hold the Licensed ChoicePoint Materials
(excluding the Utility Software Programs) in
confidence; will not reverse compile or
disassemble the Licensed ChoicePoint Materials
(excluding the Utility Software Programs); will
not remove or destroy any proprietary markings of
the Group on or contained in the Licensed
ChoicePoint Materials (excluding the Utility
Software Programs); and will include the
copyright and patent notices of the licensor as
specified from time to time by the licensor for
the Licensed ChoicePoint Materials (excluding the
Utility Software Programs) on and in all copies
of the Licensed ChoicePoint Materials (excluding
the Utility Software Programs); and
(vi) will not sublicense, assign or otherwise transfer
the Licensed ChoicePoint Materials (excluding the
Utility Software Programs) to any other Person.
(c) In the event any member of the Equifax Group sublicenses any
portion of the Licensed ChoicePoint Materials (excluding the Utility Software
Programs) to any third party pursuant to Section 4.4(a) and (b) above, Equifax
agrees to ensure that such member shall diligently enforce the terms and
conditions of all sublicenses granted pursuant to this Section 4.4.
(d) In the event that Equifax, or another member of the Equifax Group,
shall enter into a Divested Business transaction with respect to the Equifax
Group, and the scope of permitted use or other terms applicable to the Licensed
ChoicePoint Materials (excluding the Utility Software Programs) under the
license or sublicenses granted in this Section 4.4 are required to be modified
to effect such transaction, ChoicePoint will, or will cause the sublicensor
under the applicable sublicense to, agree to such modifications to the extent
(i) required for the transaction to be effected and (ii) not materially
detrimental to the interests of the ChoicePoint Group. Such modifications shall
not be effective until the Divested Business or the acquiror thereof, as
required by ChoicePoint, has entered into a license agreement with the
appropriate member of the ChoicePoint Group incorporating the terms of Section
4.4 and Section 4.5 and such other terms as ChoicePoint reasonably deems
appropriate for the protection of its interests in the Licensed ChoicePoint
Materials (excluding the Utility Software Programs).
(e) ChoicePoint hereby grants, and will cause the other members of the
ChoicePoint Group to grant, to Equifax a fully paid, non-exclusive, perpetual,
worldwide, transferable, source
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and object code license to use, modify, improve, create Derivative Works and
ChoicePoint Enhancements from, and sublicense, the Licensed ChoicePoint
Materials that are comprised of the Utility Software Programs for any and all
fields of use and to any and all Persons.
(f) The Licensed ChoicePoint Materials may be marketed under such name
and in such manner as Equifax chooses, consistent with the terms and conditions
of this Agreement.
(g) Except for the Equifax Group's rights described in Section 4.4(a),
(b) and (e) above, the ChoicePoint Group's rights in and to the Licensed
ChoicePoint Materials shall be and remain the exclusive property of ChoicePoint
or the Designated ChoicePoint Member.
Section 4.5. Ownership of Enhancements by Equifax.
(a) Equifax, or the Designated Equifax Member, shall own all the
modifications and improvements to, and the Equifax Enhancements and/or
Derivative Works made from, the Licensed ChoicePoint Materials developed by any
member of the Equifax Group, or by any party other than a member of the
ChoicePoint Group at the expense of the Equifax Group. ChoicePoint hereby
assigns, and shall cause each member of the ChoicePoint Group to assign, to
Equifax, or the Designated Equifax Member, all right, title and interest it may
hold in such modifications, improvements, Equifax Enhancements and Derivative
Works. Equifax shall, or shall cause the Designated Equifax Member to, have the
right to make and file all applications and other documents required to
register the copyright(s) and file for patents for such modifications,
improvements, Equifax Enhancements and Derivative Works in its discretion and
at its sole cost and expense.
(b) Should Equifax elect to file any application for the registration,
perfection or protection of any modifications, improvements, Equifax
Enhancements or Derivative Works described in Section 4.5(a), under any
copyright, patent, semi-conductor chip protection or other law of any country
or jurisdiction, ChoicePoint will, at the request and expense of Equifax, do
all things and sign all documents or instruments reasonably necessary in the
opinion of Equifax to assist in the registration of such claims, file such
applications, and obtain, defend and enforce such copyright, patent, mask work
and other rights.
(c) Subject to the license rights granted in Section 4.4, the Licensed
ChoicePoint Materials shall be and shall remain the sole and exclusive property
of the ChoicePoint Group and the members of the ChoicePoint Group may make any
internal use and may commercially exploit any enhancements to the Licensed
Materials made or cause to be made by members of the Equifax Group, as they
deem appropriate without any obligation to any member of the Equifax Group or
other restriction. The ChoicePoint Group may in particular distribute and
manufacture, or cause to be manufactured or distributed by any third party, any
such enhancements and/or Licensed ChoicePoint Materials.
Section 4.6. Data.
In no event shall any member of the Group be deemed to have been
granted any rights under this Agreement in or to any data owned or maintained
by any other member of the Group,
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except as specifically provided in Section 2.1.2. The respective rights of the
members of the Group in and to such data shall be governed exclusively by
Section 2.1.2 and the Intercompany Information Services Agreement.
Section 4.7. Mutual Obligations.
(a) The parties acknowledge that the Licensed Materials are
"intellectual property" within the meaning of Section 101 of the Federal
Bankruptcy Act and shall be subject to Section 365(n) thereof, all as set forth
in the Intellectual Property Bankruptcy Protection Act, Public Law 100-506, 102
Stat. 2538.
(b) In full and complete payment of the licenses granted in this
Agreement, the parties have made the payment described in the Distribution
Agreement as set forth in that Agreement.
(c) Each party shall notify the other party of any involuntary
attachment or other judicial process affecting the Licensed Materials.
ARTICLE V
THE CLOSING
Section 5.1. Equifax Deliverables.
On the Closing Date, Equifax will, and/or will cause each member of
the Equifax Group to, deliver to ChoicePoint each of the following:
(a) Duly executed assignment and assumption agreements necessary for
the assignment and transfer to, and the assumption by ChoicePoint of, the
Transferred Equifax Assets;
(b) Duly executed assignment and assumption agreements necessary for
the assignment and transfer to, and the assumption by Equifax of, the Equifax
Liabilities; and
(c) Such other agreements, leases, documents or instruments as the
parties may agree are necessary or desirable in order to achieve the purposes
of this Agreement.
Section 5.2. ChoicePoint Deliverables.
On the Closing Date, ChoicePoint will, and/or will cause each member
of the ChoicePoint Group to, deliver to Equifax each of the following:
(a) Duly executed assignment and assumption agreements necessary for
the assignment and transfer to, and the assumption by Equifax of, the
Transferred ChoicePoint Assets;
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(b) Duly executed assignment and assumption agreements necessary for
the assignment and transfer to, and the assumption by ChoicePoint of, the
ChoicePoint Liabilities; and
(c) Such other agreements, documents or instruments as the parties
may agree are necessary or desirable in order to achieve the purposes of this
Agreement.
Section 5.3. Termination.
If the Closing Date does not occur prior to September 15, 1997, this
Agreement shall be terminated.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Except as expressly set forth in this Agreement or any Ancillary
Agreement, neither any member of the Equifax Group, nor any member of the
ChoicePoint Group, has given or is giving any representation or warranty
regarding the Assets or Liabilities retained, transferred, assumed or licensed
as contemplated hereby or thereby, including without limitation, (i) title to
the Assets, (ii) validity of the Liabilities, (iii) any lien, claim or other
encumbrance affecting the Assets or Liabilities, or (iv) the value of the
Assets and the amount of the Liabilities. Except as may be expressly set forth
in this Agreement or any Ancillary Agreement, all Assets and Liabilities were,
or are being, transferred, assigned, licensed, assumed, or are being retained,
on an "AS IS", "WHERE IS" basis and the respective transferees, licensees and
assignees will bear the economic and legal risks that any such conveyance (i)
shall prove to be insufficient to vest in the transferee a title that is free
and clear of any lien, claim or other encumbrance, or (ii) shall not constitute
an infringement of a third party's rights.
ARTICLE VII
INDEMNIFICATION
Section 7.1. ChoicePoint Indemnification of the Equifax Group.
On and after the Distribution Date, ChoicePoint shall indemnify,
defend and hold harmless each member of the Equifax Group, and each of their
respective directors, officers, employees and agents (collectively the "Equifax
Indemnitees") from and against any and all damage, loss, liability and expense,
(including without limitation, reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with any and all Actions
or threatened Actions) (collectively, "Indemnifiable Losses") incurred or
suffered by any of the Equifax Indemnitees arising in connection with the
failure of ChoicePoint, or any other member of the ChoicePoint Group, to timely
pay, perform or otherwise discharge, any of the ChoicePoint Liabilities or its
obligations under this Agreement or any Ancillary Agreement.
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Section 7.2. Equifax Indemnification of the ChoicePoint Group.
On and after the Distribution Date, Equifax shall indemnify, defend
and hold harmless each member of the ChoicePoint Group and each of their
respective directors, officers, employees and agents (collectively the
"ChoicePoint Indemnitees") from and against any and all Indemnifiable Losses
incurred or suffered by any of the ChoicePoint Indemnitees arising in
connection with the failure of Equifax, or any other member of the Equifax
Group, to timely pay, perform or otherwise discharge, any of the Equifax
Liabilities or its obligations under this Agreement or any Ancillary Agreement.
Section 7.3. Insurance and Third Party Obligations.
No insurer or any other third party shall be (a) entitled to a
benefit it would not be entitled to receive in the absence of the foregoing
indemnification provisions, (b) relieved of the responsibility to pay any
claims to which it is obligated, or (c) entitled to any subrogation rights with
respect to any obligation hereunder.
ARTICLE VIII
INDEMNIFICATION PROCEDURES
Section 8.1. Notice and Payment of Claims.
If any Equifax or ChoicePoint Indemnitee (the "Indemnified Party")
determines that it is or may be entitled to indemnification by a party (the
"Indemnifying Party") under Article VII (other than in connection with any
Action or claim subject to Section 8.2), the Indemnified Party shall deliver to
the Indemnifying Party a written notice specifying, to the extent reasonably
practicable, the basis for its claim for indemnification and the amount for
which the Indemnified Party reasonably believes it is entitled to be
indemnified. After the Indemnifying Party shall have been notified of the
amount for which the Indemnified Party seeks indemnification, the Indemnifying
Party shall, within thirty (30) days after receipt of such notice, pay the
Indemnified Party such amount in cash or other immediately available funds (or
reach agreement with the Indemnified Party as to a mutually agreeable
alternative payment schedule) unless the Indemnifying Party objects to the
claim for indemnification or the amount thereof. If the Indemnifying Party does
not give the Indemnified Party written notice objecting to such claim and
setting forth the grounds therefor within the same thirty (30) day period, the
Indemnifying Party shall be deemed to have acknowledged its liability for such
claim and the Indemnified Party may exercise any and all of its rights under
applicable law to collect such amount. Any amount owed under this Section 8.1
that is past due shall bear interest at a simple rate of interest per annum
equal to the lesser of 1% per month or the maximum amount permitted by law.
Section 8.2. Notice and Defense of Third Party Claims.
(a) Promptly following the earlier of either (i) receipt of notice of
the commencement by a third party of any Action against or otherwise involving
any Indemnified Party, or (ii) receipt of information from a third party
alleging the existence of a claim against an Indemnified
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Party, with respect to which indemnification may be sought pursuant to this
Agreement (a "Third Party Claim"), the Indemnified Party shall give the
Indemnifying Party written notice thereof. The failure of the Indemnified Party
to give notice as provided in this Section 8.2 shall not relieve the
Indemnifying Party of its obligations under this Agreement, except to the
extent that the Indemnifying Party is prejudiced by such failure to give
notice. Within thirty (30) days after receipt of such notice, the Indemnifying
Party shall by giving written notice thereof to the Indemnified Party, (i)
acknowledge, as between the parties hereto, liability for and, at its option,
assume the defense of such Third Party Claim at its sole cost and expense, or
(ii) object to the claim of indemnification set forth in the notice delivered
by the Indemnified Party pursuant to the first sentence of this Section 8.2
setting forth the grounds therefor; provided that if the Indemnifying Party
does not within the same thirty (30) day period give the Indemnified Party
written notice acknowledging liability and electing to assume the defense, or
objecting to such claim and setting forth the grounds therefor, the
Indemnifying Party shall be deemed to have acknowledged, as between the parties
hereto, its liability for such Third Party Claim.
(b) Any contest of a Third Party Claim as to which the Indemnifying
Party has elected to assume the defense shall be conducted by attorneys
employed by the Indemnifying Party and reasonably satisfactory to the
Indemnified Party; provided that the Indemnified Party shall have the right to
participate in such proceedings and to be represented by attorneys of its own
choosing at the Indemnified Party's sole cost and expense. If the Indemnifying
Party assumes the defense of a Third Party Claim, the Indemnifying Party may
settle or compromise the Third Party Claim without the prior written consent of
the Indemnified Party; provided that the Indemnifying Party may not agree to
any such settlement pursuant to which any such remedy or relief, shall be
applied to or against the Indemnified Party, other than monetary damages for
which the Indemnifying Party shall be responsible hereunder, without the prior
written consent of the Indemnified Party, which consent shall not be
unreasonably withheld.
(c) If the Indemnifying Party does not assume the defense of a Third
Party Claim for which it has acknowledged liability for indemnification under
Article VII, the Indemnified Party may require the Indemnifying Party to
reimburse it on a current basis for its reasonable expenses of investigation,
reasonable attorneys' fees and reasonable out-of-pocket expenses incurred in
defending against such Third Party Claim and the Indemnifying Party shall be
bound by the result obtained by the Indemnified Party with respect thereto;
provided that the Indemnifying Party shall not be liable for any settlement
effected without its consent, which consent shall not be unreasonably withheld.
The Indemnifying Party shall pay to the Indemnified Party in cash the amount
for which the Indemnified Party is entitled to be indemnified (if any) within
fifteen (15) days after the final resolution of such Third Party Claim, whether
such final resolution is (i) by the final nonappealable judgment of a court of
competent jurisdiction, or (ii) in the case of any Third Party Claim as to
which the Indemnifying Party's objection has been resolved by settlement,
compromise, arbitration or otherwise.
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ARTICLE IX
CONFIDENTIALITY
Section 9.1. Exclusions.
Notwithstanding anything to the contrary contained in this Agreement,
"Company Information" does not include any information that (a) subsequent to
the Distribution Date, is already known to the receiving party at the time it
is disclosed to the receiving party by the disclosing party; or (b) before
being divulged by the receiving party (i) has become generally known to the
public through no wrongful act of the receiving party; (ii) has been rightfully
received by the receiving party from a third party without restriction on
disclosure and without, to the knowledge of the receiving party, a breach of an
obligation of confidentiality running directly or indirectly to the disclosing
party; (iii) has been approved for release to the general public by a written
authorization of the disclosing party; (iv) has been independently developed by
the receiving party without use, directly or indirectly, of the Company
Information received from the disclosing party; or (v) has been furnished to a
third party by the disclosing party without restrictions on the third party's
rights to disclose the information.
Section 9.2. Confidentiality.
(a) Each party agrees, and shall cause each member of the Group to
agree, that it is in possession of significant confidential or proprietary
information concerning the business, operations and Assets of the members of
the other Group.
(b) Each party shall, and shall ensure that each member of the Group
shall, (i) receive and hold the Company Information of the other Group in trust
and in strictest confidence; (ii) protect such Company Information from
disclosure and in no event take any action causing, or fail to take the action
necessary in order to prevent, any such Company Information to lose its
character as Company Information; (iii) exercise at a minimum the same care it
would exercise to protect its own highly confidential information; and (iv) not
use, reproduce, distribute, disclose, or otherwise disseminate the Company
Information of the other Group, (A) except as authorized pursuant to this
Agreement or any Ancillary Agreement, or (B) except pursuant to a requirement
of a governmental agency or of law without similar restrictions or other
protections against public disclosure; provided, however, with respect to
disclosures pursuant to (B) above, the receiving party must first give written
notice of such required disclosure to the disclosing party, make a reasonable
effort to obtain a protective order requiring that the Company Information so
disclosed be used only for the purposes for which disclosure is required, take
reasonable steps to allow the disclosing party to seek to protect the
confidentiality of the Company Information required to be disclosed, and shall
disclose only that part of the Company Information which, in the written
opinion of its legal counsel, it is required to disclose. In no event shall the
receiving party exercise less than a reasonable standard of care to keep
confidential the Company Information. Any and all reproductions of such Company
Information must prominently contain a confidential legend.
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(c) The receiving party may make disclosures of the Company
Information of the disclosing party only to Representatives of the receiving
party's Group (i) who have a specific need to know such information; and (ii)
who the receiving party has obligated under a written agreement to hold such
Company Information in trust and in strictest confidence and otherwise to
comply with the terms and provisions of this Agreement or terms and conditions
substantially similar to and implementing the same restrictions and covenants
as those set forth in this Agreement. ChoicePoint and Equifax agree to
diligently monitor each such Representative, diligently enforce such agreements
with its Representatives, and, upon request by the other party, promptly to
furnish to the other party a certified list of the receiving party's
Representatives having had access to such Company Information.
(d) The covenants of confidentiality set forth in this Agreement (i)
will apply after the Distribution Date to all Company Information disclosed to
the receiving party before, on and after the Distribution Date and (ii) will
continue and must be maintained from the Distribution Date through (A) with
respect to Proprietary Information, the period during which the Proprietary
Information constituting a part of the Company Information retains its status
as a "trade secret" under applicable law; and (B) with respect to Confidential
Information constituting a part of the Company Information, for the shorter of
a period equal to two (2) years after the Distribution Date, or until such
Confidentiality Information no longer qualifies as confidential under
applicable law.
Section 9.3. Employee Confidentiality Agreements. The members of each
Group have entered into confidentiality and non-disclosure agreements with
their respective employees. To the extent that any employee during or after
employment violates any such agreement and such violation is or may in the
future be to the detriment of the other Group, at the written request of the
affected party, the other party shall, or shall cause the appropriate members
of its Group to, promptly bring and diligently pursue an action against such
employee if and to the extent reasonable under the circumstances to preserve
the value of the Assets and Licensed Materials. The Group member employing the
employee violating his/her confidentiality and non-disclosure agreement shall
have the unilateral right to determine the forum for, the manner of proceeding
in, and legal counsel for such action and shall be entitled to any damages or
other relief against such employee awarded in such action to the extent related
to such Group's Assets or business or to the Licensed Materials. Such
enforcement against and recovery by a Group member from its breaching employee
shall not constitute a release or sole remedy for the members of the other
Group injured by such breaching employee's actions, and such members of the
other Group may bring a claim against the Group members employing the breaching
employee for a breach of this Agreement. Each party shall bear all
out-of-pocket costs of pursuing such action and the other party shall cooperate
in connection therewith.
Section 9.4. Rights and Remedies.
(a) If either party, or any member of the Group, should breach or
threaten to breach any of the provisions of this Agreement, the non-breaching
party, in addition to any other remedies it may have at law or in equity, may
seek a restraining order, injunction, or other similar remedy in order to
specifically enforce the provisions of this Agreement. Each party
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specifically acknowledges, and shall cause each member of the Group to
acknowledge, that money damages alone would be an inadequate remedy for the
injuries and damage that would be suffered and incurred by the non-breaching
party as a result of a breach of any of the provisions of this Agreement. In
the event that either party, or a member of such party's Group, should seek an
injunction hereunder, the other party hereby waives, and shall cause each
member of its Group to waive, any requirement for the submission of proof of
the economic value of any Company Information or the posting of a bond or any
other security. In the event of a dispute between the parties, the
non-prevailing party shall pay all costs and expenses associated with resolving
the dispute, including, but not limited to, reasonable attorneys' fees.
(b) The receiving party shall notify the disclosing party immediately
upon discovery of any unauthorized use or disclosure of Company Information, or
any other breach of this Agreement by the receiving party or any Representative
of the receiving party's Group, and will cooperate with the disclosing party in
every reasonable way to help the disclosing party regain possession of its
Company Information and prevent its further unauthorized use or disclosure. The
receiving party shall be responsible for the acts of any Representative of its
Group that are in violation of this Agreement.
Section 9.5. Competitive Activities.
(a) Subject to the rights and obligations set forth in Article IX,
each party understands and acknowledges that the other party's Group may now
market or have under development products that are competitive with products or
services now offered or that may be offered by it and/or members of its Group,
and the parties' communications hereunder will not serve to impair the right of
either party, or any member of the Group, to independently develop, make, use,
procure, or market products or services now or in the future that may be
competitive with those offered by the other party's Group, nor require either
party, and/or the members of its Group, to disclose any planning or other
information to the other party.
(b) Neither party will be restricted in using, in the development,
manufacturing and marketing of its products and services and its operations,
any data processing or network management or operation ideas, concepts,
know-how and techniques which are retained in the minds of employees who have
had access to the other party's Company Information subject to the restrictions
set forth in this Agreement.
Section 9.6. No Implied Rights.
All Company Information is and shall remain the property of the
disclosing party and/or the member's of its Group. By disclosing Company
Information to the receiving party's Group, the disclosing party and/or the
members of its Group do(es) not grant any express or implied rights or license
to the receiving party's Group to or under any patents, patent applications,
inventions, copyrights, trademarks, trade secret information, or other
intellectual property rights heretofore or hereafter possessed by the
disclosing party and/or the members of its Group.
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ARTICLE X
CONTINUED ASSISTANCE
Section 10.1. Continued Assistance and Transition.
(a) Following the Distribution Date, Equifax shall, and shall cause
each member of the Equifax Group to, cooperate in an orderly transfer of the
Transferred Equifax Assets to ChoicePoint or the Designated ChoicePoint Member.
From time to time, at ChoicePoint's request and without further consideration,
Equifax shall, and shall cause each member of the Equifax Group, as applicable,
to execute, acknowledge and deliver such documents, instruments or assurances
and take such other action as ChoicePoint may reasonably request to more
effectively assign, convey and transfer any of the Transferred Equifax Assets.
Equifax will assist ChoicePoint in the vesting, collection or reduction to
possession of such Transferred Equifax Assets.
(b) Following the Distribution Date, ChoicePoint shall, and shall
cause each member of the ChoicePoint Group to, cooperate in an orderly transfer
of the Transferred ChoicePoint Assets to Equifax or the Designated Equifax
Member. From time to time, at Equifax's request and without further
consideration, ChoicePoint shall, and shall cause each member of the
ChoicePoint Group, as applicable, to execute, acknowledge and deliver such
documents, instruments or assurances and take such other action as Equifax may
reasonably request to more effectively assign, convey and transfer any of the
Transferred ChoicePoint Assets. ChoicePoint will assist Equifax in the vesting,
collection or reduction to possession of such Transferred ChoicePoint Assets.
Section 10.2. Records and Documents.
(a) As soon as practicable following the Distribution Date, Equifax
and ChoicePoint shall each arrange for the delivery to the other of existing
corporate and other documents (e.g. minute books, stock registers, stock
certificates, documents of title, source code, contracts, etc.) in its
possession relating to the Transferred Assets and assumed Liabilities.
(b) From and after the Distribution Date, Equifax and ChoicePoint
shall each, and shall cause each member of its Group to, afford the other and
its accountants, counsel and other designated Representatives reasonable access
(including using reasonable efforts to give access to person or firms
possessing such information) and duplicating rights during normal business
hours to all records, books, contracts, instruments, computer data and other
data and information in its possession relating to the Assets, Liabilities,
Licensed Materials, business and affairs of the other (other than data and
information subject to any attorney/client or other privilege), insofar as such
access is reasonably required by the other, including without limitation, for
audit, accounting and litigation purposes.
(c) Notwithstanding the foregoing, either party may destroy or
otherwise dispose of any information at any time in accordance with the
corporate record retention policy maintained by such party with respect to its
own records.
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Section 10.3. Litigation Cooperation.
Upon written request by either party and at the cost and expense of
the requesting party, Equifax and ChoicePoint shall, and shall cause each
member of its Group to, use reasonable efforts to make available to the
requesting party, its Representatives as witnesses to the extent that such
persons may reasonably be required in connection with any legal, administrative
or other proceedings involving third parties that are not a member of either
Group, arising out of this Agreement or related to the matters which are the
subject of this Agreement, and in which the requesting party or any member of
its Group may from time to time be involved.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Expenses.
Except as specifically provided in this Agreement or any Ancillary
Agreement, all costs and expenses incurred in connection with the preparation,
execution, delivery and implementation of this Agreement and the Ancillary
Agreements and with the consummation of the transactions contemplated by this
Agreement (including transfer taxes and the fees and expenses of all counsel,
accountants and financial and other advisors) shall be paid by Equifax.
Section 11.2. Notices.
All notices and communications under this Agreement shall be deemed
to have been given (a) when received, if such notice or communication is
delivered by facsimile, hand delivery or courier, and (b) three (3) business
days after mailing if such notice or communication is sent by United States
registered or certified mail, return receipt requested, first class postage
prepaid. All notices and communications, to be effective, must be properly
addressed to the party to whom the same is directed at its address as follows:
If to Equifax, to:
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, GA 30309
Attention: Bruce S. Richards
Corporate Vice President and General Counsel
Fax: (404) 888-8682
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with a copy (which shall not constitute notice) to:
Thomas F. Chapman
President and Chief Operating Officer
Equifax Inc.
1600 Peachtree Street, N.W.
Atlanta, GA 30309
Fax: (404) 885-8766
If to ChoicePoint, to:
ChoicePoint Inc.
1000 Alderman Drive
Alpharetta, GA 30005
Attention: J. Michael de Janes, Esq.
Fax: (770) 752-5939
with a copy (which shall not constitute notice) to:
Derek V. Smith
President and Chief Executive Officer
ChoicePoint Inc.
1000 Alderman Drive
Alpharetta, GA 30005
Fax: (770) 752-6243
Either party may, by written notice so delivered to the other party in
accordance with this Section 11.2, change the address to which delivery of any
notice shall thereafter be made.
Section 11.3. Amendment and Waiver.
This Agreement may not be altered or amended, nor may any rights
hereunder be waived, except by an instrument in writing executed by the party
or parties to be charged with such amendment or waiver. No waiver of any terms,
provision or condition of or failure to exercise or delay in exercising any
rights or remedies under this Agreement, in any one or more instances, shall be
deemed to be, or construed as, a further continuing waiver of any such term,
provision, condition, right or remedy or as a waiver of any other term,
provision or condition of this Agreement.
Section 11.4. Entire Agreement.
This Agreement, together with the Ancillary Agreements, constitutes
the entire understanding of the parties hereto with respect to the subject
matter hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to such subject matter. To the extent
that the provisions of this Agreement are inconsistent with the provisions
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of any other Ancillary Agreement, the provisions of this Agreement shall
prevail with respect to the subject matter hereof.
Section 11.5. Parties in Interest. Neither of the parties hereto may
assign its rights or delegate any of its duties under this Agreement without
the prior written consent of each other party. This Agreement shall be binding
upon, and shall inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. Nothing contained in this
Agreement, express or implied, is intended to confer any benefits, rights or
remedies upon any person or entity other than members of the Equifax Group and
the ChoicePoint Group and the Equifax Indemnitees and ChoicePoint Indemnitees
under Articles VII and VIII hereof.
Section 11.6. Further Assurances and Consents.
In addition to the actions specifically provided for elsewhere in
this Agreement, each of the parties hereto will use its reasonable efforts to
(a) execute and deliver such further instruments and documents and take such
other actions as any other party may reasonably request in order to effectuate
the purposes of this Agreement and to carry out the terms hereof and (b) take,
or cause to be taken, all actions, and to do, or cause to be done, all things,
reasonably necessary, proper or advisable under applicable laws, regulations
and agreements or otherwise to consummate and make effective the transactions
contemplated by this Agreement, including without limitation, using its
reasonable efforts to obtain any consents and approvals and to make any filings
and applications necessary or desirable in order to consummate the transactions
contemplated by this Agreement.
Section 11.7. Severability.
The provisions of this Agreement are severable and should any
provision hereof be void, voidable or unenforceable under any applicable law,
such provision shall not affect or invalidate any other provision of this
Agreement, which shall continue to govern the relative rights and duties of the
parties as though such void, voidable or unenforceable provision were not a
part hereof.
Section 11.8. Governing Law.
This Agreement shall be construed in accordance with, and governed
by, the laws of the State of Georgia, without regard to the conflicts of law
rules of such state.
Section 11.9. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original instrument, but all of which together shall
constitute but one and the same Agreement.
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Section 11.10. Disputes.
(a) All disputes arising from or in connection with this Agreement,
whether based on contract, tort, statute or otherwise, including, but not
limited to, disputes in connection with claims by third parties (collectively,
"Disputes"), shall only be in accordance with the provisions of this Section
11.10; provided, however, that nothing contained herein shall preclude either
party from seeking or obtaining (i) injunctive relief to prevent an actual or
threatened breach of any of the provisions of this Agreement, or (ii) equitable
or other judicial relief to enforce the provisions thereof or to preserve the
status quo pending resolution of Disputes hereunder.
(b) Either party may give the other party written notice of any
Dispute not resolved in the normal course of business. Within ten (10) days
after delivery of the notice, the receiving party shall submit to the other a
written response. The notice and the response shall include a statement of such
party's position and a summary of arguments supporting that position and the
name and title of the executive who will represent that party and of any other
person who will accompany such executive in resolving the Dispute. Within
twenty (20) days after delivery of the first notice, the executives of both
parties shall meet at a mutually acceptable time and place, and thereafter as
often as they reasonably deem necessary, and shall negotiate in good faith to
attempt to resolve the Dispute. All reasonable requests for information made by
one party to the other will be honored.
(c) If the Dispute has not been resolved by negotiation with sixty
(60) days of the first party's notice, the Dispute shall be submitted, upon
application of either party, for resolution by arbitration in accordance with
the Commercial Arbitration Rules of the American Arbitration Association (the
"Rules"). Arbitration shall be by a single arbitrator experienced in the
matters that are at issue in the Dispute, which arbitrator shall be selected by
the parties in accordance with the Rules. The arbitration shall be conducted in
Atlanta, Georgia (or at any other place agreed upon by the parties and the
arbitrator). The decision of the arbitrator shall be final and binding as to
all matters at issue in the Dispute; provided, however, if necessary such
decision may be enforced by either party in any court of law having
jurisdiction over the parties or the subject matter of the Dispute. Unless the
arbitrator shall assess the costs and expenses of the arbitration proceeding
and of the parties differently, each party shall pay it costs and expenses
incurred in connection with the arbitration proceeding, and the costs and
expenses of the arbitrator shall be shared equally by the parties.
Section 11.11. Force Majeure.
Neither party will be liable for any loss or damage due to causes
beyond its control, including, but not limited to, fire, accident, labor
difficulty, war, power or transmission failures, riot, Acts of God or changes
in laws and regulations, provided that the affected party must (a) promptly
notify the other party in writing and furnish all relevant information
concerning the event of force majeure; (b) use reasonable efforts to avoid or
remove the cause of its nonperformance; and (c) proceed to perform its
obligations with dispatch when such cause is removed.
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Section 11.12. Documentation.
Prior to the Distribution Date and from time to time thereafter, the
parties will prepare, maintain and update schedules of the Transferred Equifax
Assets, the Transferred ChoicePoint Assets, the Licensed Equifax Materials, the
Licensed ChoicePoint Materials, and the Third Party Agreements, the Third Party
Rights and the Third Party Software transferred and/or provided by each Group
to the other Group, in such detail as shall be appropriate for the management
and administration of these items as described in this Agreement.
Section 11.13. Headings.
The Article and Section headings set forth in this Agreement are
included for administrative, organizational and convenience purposes, and are
not intended to affect the meaning of the provisions set forth in this
Agreement or to be used in the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the day and year first above written.
EQUIFAX INC.
By:
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Title:
------------------------
Date:
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CHOICEPOINT INC.
By:
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Title:
------------------------
Date:
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