Intercompany Information Services Agreement - Equifax Inc. and ChoicePoint Inc.
INTERCOMPANY INFORMATION SERVICES AGREEMENT
BETWEEN EQUIFAX INC.
AND
CHOICEPOINT INC.
DATED JULY ____, 1997
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1. Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II INFORMATION SERVICES . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.1. Information Services . . . . . . . . . . . . . . . . . . 7
Section 2.2. Supplemental Agreements . . . . . . . . . . . . . . . . . 8
Section 2.3. Mutual Obligations. . . . . . . . . . . . . . . . . . . . 9
Section 2.4. FCRA Certification . . . . . . . . . . . . . . . . . . . 10
ARTICLE III FEES AND PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 3.1. Fees and Charges . . . . . . . . . . . . . . . . . . . . 10
Section 3.2. Payment Terms . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.3. Disputed Amounts . . . . . . . . . . . . . . . . . . . . 11
Section 3.4. Interest . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.5. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV REPRENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . 11
ARTICLE V LIMITATION ON ACTIONS AND LIABILITIES . . . . . . . . . . . . . . . . 12
Section 5.1. Covenant Not to Sue . . . . . . . . . . . . . . . . . . . 12
Section 5.2. Release . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.3. Limitation of Liability . . . . . . . . . . . . . . . . . 13
ARTICLE VI INDEMINIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 6.1. Choice Point Indemnification of the Equifax Group . . . . 14
Section 6.2. Equifax Indemnification of the Choice Point Group . . . . 14
Section 6.3. Insurance and Third Party Obligations . . . . . . . . . . 14
ARTICLE VII INDEMNIFICATION PROCEDURES . . . . . . . . . . . . . . . . . . . . 15
Section 7.1. Notice and Payment of Claims . . . . . . . . . . . . . . 15
Section 7.2. Notice and Defense of Third Party Claims . . . . . . . . 15
ARTICLE VIII CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.1. Exclusions . . . . . . . . . . . . . . . . . . . . . . . 16
Section 8.2. Confidentiality . . . . . . . . . . . . . . . . . . . . . 17
Section 8.3. Employee Confidentiality Agreements . . . . . . . . . . . 18
Section 8.4. Rights and Remedies . . . . . . . . . . . . . . . . . . . 18
Section 8.5. Competitive Activities . . . . . . . . . . . . . . . . . 19
Section 8.6. No Implied Rights . . . . . . . . . . . . . . . . . . . . 19
ARTICLE IX CONTINUED ASSISTANCE . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 9.1. Continued Assistance and Transition . . . . . . . . . . . 20
Section 9.2. Litigation Cooperation . . . . . . . . . . . . . . . . . 20
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ARTICLE X TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.1. Term . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 10.2. Termination . . . . . . . . . . . . . . . . . . . . . . 21
Section 10.3. Effect of Termination and Expiration . . . . . . . . . . 21
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 11.1. Expenses . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 11.3. Amendment and Waiver . . . . . . . . . . . . . . . . . . 23
Section 11.4. Entire Agreement . . . . . . . . . . . . . . . . . . . . 23
Section 11.5. Parties in Interest . . . . . . . . . . . . . . . . . . 23
Section 11.6. Further Assurances and Consents . . . . . . . . . . . . 23
Section 11.7. Severability . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.8. Governing Law . . . . . . . . . . . . . . . . . . . . . 24
Section 11.9. Counterparts . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.10. Disputes . . . . . . . . . . . . . . . . . . . . . . . 24
Section 11.11. Force Majeure . . . . . . . . . . . . . . . . . . . . . 25
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THIS INTERCOMPANY INFORMATION SERVICES 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 purposes of receiving and conducting the business of the
ChoicePoint Group (as defined below) and taking title to the intellectual
property assets and assuming the associated liabilities related to the business
operations of the ChoicePoint Group.
B. A.The transfer of such business, assets and liabilities, as
well as other assets, will be effected pursuant to the Distribution Agreement
(as defined below).
C. A.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) provide various
Information Services (as defined below) to each other and to their respective
customers. Prior to the Distribution, Equifax and its Affiliates utilized both
common resources and discrete, commercial products purchased from one another
in the conduct of their respective businesses. At and after the Effective
Time, Equifax and ChoicePoint desire to purchase from each other and their
Group members certain Information Services for their own use and for resale to
their Group customers.
E.The parties have determined that it is necessary and desirable to
set forth the arrangements required to effect the purchase and sale of their
respective Information Services to the members of each Group and to set forth
their other agreements that will govern certain other matters regarding the
parties' respective purchase and sale of Information Services 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 by
the parties, each party agrees for itself and jointly and severally with each
member of its Group, and will cause each member of its Group to agree jointly
and severally with it, 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 a party, any corporation,
partnership (general or limited), limited liability corporation, joint venture
or other form of business entity that controls, is controlled by or is under
common control with that party; and "control" means (i) either directly or
indirectly owning or having the right to vote ownership interests possessing a
majority of the aggregate voting power of all ownership interests of that
entity, or (ii) having the power to control and direct, either directly or
indirectly, the business and affairs of that entity or to elect or appoint the
person (or if more than one, a majority of the persons) who is responsible for
the management and control of the business and affairs of that entity.
(c) "Agreement" means the terms and conditions of this
Intercompany Information Services Agreement and the Exhibits attached hereto.
(d) "Ancillary Agreements" means all of the written agreements,
instruments, understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby and in the Distribution
Agreement, including without limitation, the Distribution Agreement, the
Employee Benefits Agreement, the Transition Support Agreement, the Intellectual
Property Agreement, the CUE UK Agreements, the Tax Sharing and Indemnification
Agreement, and the Real Estate Agreements.
(e) "ChoicePoint Business" means the businesses conducted by the
members of the ChoicePoint Group as of the Effective Time.
(f) "ChoicePoint Group" means the entities set forth on Exhibit A.
(g) "ChoicePoint Indemnitees" has the meaning given in Section
6.2.
(h) "ChoicePoint Liabilities" means all unsatisfied Liabilities
incurred attendant with the purchase of Information Services from the Equifax
Group under this Agreement, whether arising before, on or after the Effective
Time.
(i) "ChoicePoint Products" means those products, services and
deliverables offered for sale by the ChoicePoint Group to the Equifax Group, in
its sole discretion from time to time.
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(j) "Code" means the Internal Revenue Code of 1986, as amended.
(k) "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 Effective Time, or to any member of either Group
after the Effective Time, by a third party subject to an obligation to treat
such information as confidential or secret.
(l) "Confidential Information" means any and all confidential
company 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 Provider Information, the
existence and nature of the relationship between the parties including, without
limitation, the prices set forth in the Exhibits to this Agreement, 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.
(m) "Consumer Credit Information" means information pertaining to
(i) a consumer's identification and credit accounts, including but not limited
to, the identity of the credit grantor, the type of account, the credit limit,
the transaction history of the account, the payment history of the account, and
other action taken by the consumer or the credit grantor with respect to the
account, such as the closing or writing off of the account, credit file
inquiries or collection items, or (ii) the consumer's check transactions,
including their check transaction history and instances where the consumer has
written checks that were not honored by the consumer's drawee, or (iii) public
record items regarding a consumer, including without limitation, judgments, tax
liens, and bankruptcy filings, or (iv) analytical or predictive scores based on
any or all of the above.
(n) "Consumer Insurance Information" means consumer-specific
information (i) not already available to the Equifax Group from its databases
and those of its System Affiliates and (ii) which, upon delivery to the End
User, is to be used in connection with the offering of insurance products to
consumers.
(o) "Consumer Report" has the meaning given in the FCRA.
(p) "Consumer Reporting Agency" has the meaning given in the FCRA.
(q) "DAT" means a personal computer or direct access terminal.
(r) "Designated ChoicePoint Member" means a member of the
ChoicePoint Group, as designated by ChoicePoint in its sole discretion from
time to time.
(s) "Designated Equifax Member" means a member of the Equifax
Group, as designated by Equifax in its sole discretion from time to time.
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(t) "Direct Damages" means actual, direct damages incurred by the
claiming party which include, by way of example but without limitation, the
costs to correct any deficiencies in the Information Services rendered by
Provider and similar damages, but "Direct Damages" shall not include (A) loss
of interest, profit or revenue of the claiming party or (B) incidental,
consequential, special or indirect damages suffered by the claiming party and
shall not include punitive or exemplary damages suffered by the claiming party
arising from or related to this Agreement, even if such party has been advised
of the possibility of such losses or damages.
(u) "Disputes" has the meaning given in Section 11.10.
(v) "Distribution" has the meaning given in the Distribution
Agreement.
(w) "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.
(x) "Distribution Date" means the business day as of which the
Distribution shall be effective, as determined by the Board of Directors of
Equifax.
(y) "Effective Time" means 5:00 p.m. Eastern Daylight Time on July
31, 1997.
(z) "End User" means a Recipient or its Subscriber, which Person
will use a given item of Provider Information, or on whose behalf such
information will be used, in making a business decision concerning the subject
of such information.
(aa) "Equifax Business" means the businesses now or formerly
conducted by Equifax and its present and former Affiliates, other than the
ChoicePoint Business, at the Effective Time.
(bb) "Equifax Group" means Equifax and its Affiliates existing at
the Effective Time and as modified from time to time thereafter, excluding all
members of the ChoicePoint Group.
(cc) "Equifax Indemnitees" has the meaning given in Section 6.1.
(dd) "Equifax Liabilities" means all unsatisfied Liabilities
incurred attendant with the purchase of Information Services from the
ChoicePoint Group under this Agreement whether arising before, on or after the
Effective Time.
(ee) "Equifax Products" means those products, services and
deliverables offered for sale by the Equifax Group to the ChoicePoint Group in
its sole discretion from time to time.
(ff) "FCRA" means the federal Fair Credit Reporting Act, 15 U.S.C.
Section 1681, et. seq.
(gg) "Group" means the ChoicePoint Group and/or the Equifax Group.
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(hh) "Indemnifiable Loss" means 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.
(ii) "Indemnified Party" has the meaning given in Section 7.1.
(jj) "Indemnifying Party" has the meaning given in Section 7.1.
(kk) "Information Services" means those on-line and off-line
computer-based information databases, the inspection services, reporting
services, processing services, and transmission services provided by either
party or the members of its respective Group pursuant to this Agreement,
including without limitation, the ChoicePoint Products, Equifax Products and
Provider Information.
(ll) "Intellectual Property Agreement" means that certain
Intellectual Property Agreement entered into on or prior to the Distribution
Date between Equifax and ChoicePoint, as amended from time to time.
(mm) "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 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
and those arising under any contract, commitment or undertaking relating to
such specified object, matter, contract, commitment or undertaking.
(nn) "Non-Consumer Reporting Agency" means a Recipient that will
resell a given item of Provider Information that is not a Consumer Report .
(oo) "Permissible Purposes" means one of the permitted purposes for
which a Consumer Report may be provided pursuant to the FCRA.
(pp) "Person" means any individual, entity (whether or not formed
as a corporation, sole proprietorship, partnership, limited liability company
or other form of entity and whether or not conducting its affairs for profit),
and any governmental entity or agency.
(qq) "Prime Rate" means the prime rate of interest as determined
from time to time by SunTrust Bank, Atlanta.
(rr) "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
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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.
(ss) "Provider" means any member of either Group when providing
Information Services to the members of the other Group pursuant to this
Agreement.
(tt) "Provider Information" means information regarding any Person,
at the individual or aggregated levels, contained in any ChoicePoint Product or
Equifax Product, respectively, offered to any member of the other party's
Group, including without limitation, Consumer Credit Information and Consumer
Insurance Information.
(uu) "Recipient" means any member of either Group when acquiring
Information Services from the other Group pursuant to this Agreement.
(vv) "Representatives" means, individually and collectively,
officers, directors, employees, agents, and/or independent contractors of each
member of the Group.
(ww) "Subscriber" means any customer of a Recipient which obtains
Provider Information from Recipient; provided, however, that a Subscriber will
be deemed to be a "Qualified Subscriber" only if the Subscriber meets the
criteria therefor set forth in the Provider's Supplemental Agreement in effect
from time to time, as amended and/or modified by the Provider.
(xx) "Supplemental Agreements" means the Equifax Group's
supplemental terms and conditions set forth in Exhibit D and the ChoicePoint
Group's supplemental terms and conditions set forth in Exhibit E, as amended
from time to time during the term of this Agreement.
(yy) "System Affiliate" means a Person that is not an Affiliate of
Equifax that has entered into a written agreement with Equifax Credit
Information Services, Inc. regarding the provision of consumer reporting
services through the automated credit service known as "The Automated Credit
Reporting Online Package".
(zz) "Third Party Claim" has the meaning given in Section 7.2.
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ARTICLE II
INFORMATION SERVICES
Section 2.1. Information Services.
(a) During the term hereof, each provision of Information Services
by any member of one Group to any member of the other Group will be subject to
the terms and conditions of this Agreement and the Supplemental Agreements
applicable to the elements comprising the Information Services as amended
and/or modified from time to time during the term of this Agreement by the
Provider, whether such provision arises independently of any prior or
subsequent contractual obligation. The Information Services which are provided
by members of one Group to the members of the other Group as of the
Distribution Date are set forth on Exhibits B and C.
(b) The parties acknowledge that the Information Services to be
provided by the Equifax Group may contain Provider Information owned by the
Equifax Group as well as by System Affiliates, and that the Equifax Group can
only provide Information Services containing information owned by its System
Affiliates to the extent that the System Affiliates authorize the provision of
such information and subject to the applicable charges to be paid by, and
payment terms for, the ChoicePoint Group as established by the applicable
System Affiliate.
(c) The parties have each exerted their best efforts to identify
each type of Information Service presently provided by the members of one Group
to the members of the other Group and to address such Information Services in
this Agreement. The parties acknowledge that there may be Information Services
provided by the members of one Group to the members of the other Group which
are not addressed in this Agreement, but agree that all such services are
intended to be governed by this Agreement. Moreover, the parties agree: that
the Information Services provided may require adjustments during the term of
this Agreement to reflect the evolving business and operations of each Group
and applicable law; that the relationship memorialized by this Agreement is
dynamic in nature and will evolve as the operating and business environment of
each Group changes and evolves; and that the scope of the Information Services
that will be provided during the term and the corresponding fees charged and
payment terms extended by the parties may need to be modified to reflect the
foregoing. The parties agree to cooperate and negotiate with each other in
good faith in order to modify this Agreement as appropriate to give effect to
the intent of the parties and to satisfy the requirements of each party, as
described in Sections 2.1(a) and (d).
(d) For the one hundred-eighty (180) days following the Effective
Time, each party shall have the right to inventory, validate and update any
information and the services, products and deliverables that comprise the
Information Services that are reflected in or omitted from this Agreement and
attached Exhibits. If the parties determine that this Agreement or the
Exhibits hereto contain discrepancies from the intent of this Agreement, this
Agreement and/or Exhibits
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shall be promptly changed, modified, updated and adjusted to correct such
discrepancies, so that this Agreement and/or Exhibits will be correct and
accurately reflect the Information Services, and attendant charges and payment
terms, provided by one Group to the other Group at the Effective Time. In the
event that either party discovers such an omission from this Agreement or a
discrepancy from the intent hereof: (a) that party will immediately notify the
other party and the parties will promptly negotiate in good faith to establish
the specific terms and conditions applicable to such Information Services; (b)
this Agreement will govern the general terms and conditions applicable to the
provision of such Information Services; and (c) the Provider will not cease to
provide such Information Services, unless the parties are unable to agree upon
the specific terms and conditions applicable to such Information Services. If
either party disputes the existence of a discrepancy identified by the other
party, the parties will submit the matter for dispute resolution as specified
in Section 11.10.
(e) During the ninety (90) day period following the Effective
Time, the parties will negotiate in good faith to establish mutually agreed
operational procedures to effect the delivery of the Information Services and
to establish performance standards for the delivery of the Information
Services.
Section 2.2. Supplemental Agreements.
The terms and conditions applicable to any given provision of
Information Services pursuant to this Agreement will vary depending on (a)
whether such Information Services are regulated pursuant to the FCRA or other
law or regulation, (b) the type of Information Services purchased, (c) the role
in which the Recipient purchases such Information Services, including without
limitation, as a Non-Consumer Reporting Agency, Consumer Reporting Agency or
End User, (d) the purpose for which the Recipient's Subscriber ordered the
products, services and deliverables based upon such Information Services, and
(e) the third party limitations and restrictions applicable to the provisions
of the Information Services by the Provider. Accordingly, the terms and
conditions applicable to any given acquisition of Information Services by any
Recipient pursuant to this Agreement are supplemented by the terms and
conditions of the Supplemental Agreement(s) with respect to the type of
Information Services purchased, the role in which the Recipient purchases such
Information Services and the purpose for which the Recipient's Subscriber
ordered the products, services and deliverables that are based upon such
Information Services, as such Supplemental Agreement(s) is modified and/or
amended from time to time during the term of this Agreement by the Provider.
In the event of a conflict between the terms and conditions set forth in the
body of this Agreement and the specific terms and conditions regarding
provisions required by law or regulation, the type of Information Services, the
role of Recipient and/or use of particular Information Services set forth in
the Provider's Supplemental Agreement, the terms and conditions set forth in
the body of this Agreement will be controlling. In the event that any
provision contained in Articles III, IV, V, VI, VII, VIII, X and/or XI
conflicts with and/or overlaps in subject matter with any provision contained
in the Supplemental
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Agreements, the terms and conditions set forth in the body of this Agreement
will prevail and be controlling.
Section 2.3. Mutual Obligations.
(a) ChoicePoint and Equifax hereby covenant and agree that, for
the one-year period following the Effective Time, the ChoicePoint Group, except
for CDB Infotek and its subsidiaries, will obtain all of its requirements for
Consumer Credit Information except for the check transaction information and
the public record information described in Section 1.1(l)(ii) and (iii), from
the Equifax Group and the Equifax Group shall provide to the ChoicePoint Group
Consumer Credit Information to fulfill the ChoicePoint Group's requirements
therefor; subject to the exceptions set forth in Section 2.3(c).
(b) ChoicePoint and Equifax covenant and agree that, for the
one-year period following the Effective Time, the Equifax Group will obtain all
of its requirements for the types of driver's license and motor vehicle
information contained in the ChoicePoint Group's products known as "Motor
Vehicle Registry (MVR)" and/or "Additional Drivers Data (ADD)" ("Driver
Information") from the ChoicePoint Group and the ChoicePoint Group will provide
such information to the Equifax Group, subject to the exceptions set forth in
Section 2.3(c) below.
(c) Notwithstanding anything to the contrary contained in this
Section 2.3, the ChoicePoint Group may obtain its requirements for Consumer
Credit Information and/or the Equifax Group may obtain its Driver Information
requirements from other sources if:
(i) the Provider has no file on the consumer, or does not
otherwise have the requested information readily available in its
databases; or
(ii) the Recipient's customer requests that the
information be obtained from a source other than the Provider, despite
the Recipient's recommendation to the customer that the information be
obtained from the Provider; or
(iii) the Recipient's customer or the product in which the
Provider's information is to be included requires that such
information be available with respect to all or substantially all of
the geographic parts of the United States at a uniform price for all
such information and the Provider is unable or unwilling to provide
information with respect to all such geographic parts at such uniform
price; provided, however, that the Provider shall respond to
Recipient's request for such information within a reasonable period of
time not to exceed ten (10) calendar days after Provider's receipt of
Recipient's request; or
(iv) the Recipient also obtains such information from the
Provider; provided, however, if one of the exceptions set forth in
subsections (i) through (iii) above applies, the Recipient does not
have to obtain such information from the Provider; or
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(v) the Provider does not allow the information
requested by the Recipient to be used in reports of the type or for
the customers in question.
(d) Notwithstanding anything to the contrary contained in this
Section 2.3, the Equifax Group will not be obligated to provide Consumer Credit
Information to the ChoicePoint Group for sale to customers of the Equifax
Group.
(e) ChoicePoint and Equifax hereby covenant and agree that if the
Equifax Group makes a material change regarding its sources of supply of public
record information for the United States, Equifax will offer to ChoicePoint the
right to provide such public record information to the Equifax Group under
terms and conditions as mutually agreed. If ChoicePoint and Equifax can
mutually agree on commercially competitive terms and conditions for the
provision of public record information to the Equifax Group, including without
limitation, price, quantity, quality and delivery terms, within a reasonable
period of time not to exceed thirty (30) days after delivery of notice of
Equifax's intent to change its sources of supply to ChoicePoint, then the
Equifax Group will obtain public record information from the ChoicePoint Group
in accordance with such mutually agreed terms and conditions. Notwithstanding
anything to the contrary contained herein, Equifax and ChoicePoint hereby
specifically acknowledge and agree that this Section 2.3(e) shall not apply to
the Equifax Group's ability to exercise any right of first refusal it may have
to acquire any of its public record information vendors pursuant to a
contractual agreement that exists as of the Effective Time with such vendors
and/or its ability to obtain all or any portion of public record information
from such vendor as to which Equifax exercises such right of first refusal.
ChoicePoint hereby covenants and agrees not to directly or indirectly make an
offer to purchase or otherwise solicit the purchase of such public record
information vendors during the one- year period following the Effective Time.
Section 2.4. FCRA Certification.
ChoicePoint and Equifax each certify, and shall ensure that each
member of the ChoicePoint Group and Equifax Group shall certify that it will
order Provider Information that constitutes a Consumer Report only for use for
a Permissible Purpose in accordance with the FCRA, as amended from time to
time.
ARTICLE III
FEES AND PAYMENT
Section 3.1. Fees and Charges.
Each Recipient will pay the Provider for all Information Services
supplied to such Recipient according to the rates set forth on Exhibits B and C
during the initial one-year term of this Agreement and according to such rates
as are subsequently established by the Provider from time to time thereafter.
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Section 3.2. Payment Terms.
Each Recipient shall pay all invoices for Information Services
requested by such Recipient within thirty (30) days after the date of each
invoice.
Section 3.3. Disputed Amounts.
In the event that a member of either Group disputes the accuracy or
applicability of a charge or credit by a member of the other Group, such member
will notify Equifax or ChoicePoint, respectively, of such dispute prior to the
date on which the charge is to be paid or the credit issued or as soon as
practicable after the discrepancy has been discovered after the applicable
invoice is paid or credit is issued. The parties will investigate and resolve
such disputes using the dispute resolution process provided in Section 11.10 of
this Agreement. Any undisputed amounts contained on the invoice will be paid
pursuant to Section 3.2. The party responsible for paying the disputed amount
or issuing the disputed credit shall place the disputed amount in an escrow
account until such dispute is resolved. Upon resolution of the dispute, the
party in whose favor the dispute was resolved shall be paid any interest having
accrued on the escrow monies and each party shall pay the escrow fees
attributable to the disputed amount in an inverse proportion to the percentage
of the disputed amount paid to each party.
Section 3.4. Interest
Any and all amounts not paid when due shall bear interest on a day to
day basis from the due date to the date of payment (both dates inclusive) at
the lower rate of one and one-half percent (1 1/2%) per month or the highest
rate allowable under applicable law.
Section 3.5. Taxes.
All fees and charges payable under this Agreement are exclusive of all
federal, state and local sales, excise, use, value added and similar taxes not
measured by the income of Provider, which taxes shall be the sole
responsibility of Recipient and shall be paid by Recipient at the rate and in
the manner prescribed by applicable law and Section 3.2 hereof; provided,
however, if required by applicable law, Provider shall separately itemize such
taxes on Provider's invoice to Recipient, Recipient shall pay the amount of
such taxes to Provider and Provider shall remit such amount to the applicable
taxing authority. In lieu thereof, Recipient shall furnish Provider with a
properly executed tax exemption certificate acceptable to the applicable taxing
authority.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The parties and each Recipient and Provider recognize that every
business decision represents an assumption of risk and that neither party, nor
the members of either party's Group,
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in furnishing the Information Services to the other Group underwrites or
assumes the other's risk in any manner. NEITHER PARTY, NOR ANY MEMBER OF EITHER
PARTY'S GROUP NOR ANY OF ITS INFORMATION SOURCES, GUARANTEES OR WARRANTS THE
CORRECTNESS, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE INFORMATION SERVICES PROVIDED TO ANY MEMBER OF THE
OTHER PARTY'S GROUP. NEITHER PARTY, NOR ANY OF ITS REPRESENTATIVES,
INFORMATION SOURCES, LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF ITS RESPECTIVE
GROUP WILL BE LIABLE TO ANY OTHER PARTY OR ANY OF ITS REPRESENTATIVES,
INFORMATION SOURCES, LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF THE OTHER
PARTY'S GROUP FOR ANY LOSS OR INJURY ARISING OUT OF, OR CAUSED IN WHOLE OR IN
PART BY, ITS ACTS OR OMISSIONS IN PROCURING, COMPILING, COLLECTING,
INTERPRETING, PROCESSING, REPORTING OR TRANSMITTING ANY INFORMATION OR THE
INFORMATION SERVICES, EVEN IF DUE TO NEGLIGENCE. THE INFORMATION SERVICES ARE
PROVIDED ON AN "AS IS" BASIS.
No Provider makes any warranties whatsoever in connection with the
performance of the DAT, or any other means of communication or provision of the
Information Services from one party to the other, and no Provider will be
responsible for transmission distortion, interruptions or failures of the DAT,
or any other means of communication or provision of the Information Services,
or of any Information Services. Each Recipient will ensure a secure means of
delivery of Provider Information, unless otherwise agreed by the Provider, and
will not deliver such information by means of any publicly accessible network
(including without limitation, the Internet) without Provider's express written
permission.
ARTICLE V
LIMITATION ON ACTIONS AND LIABILITIES
Section 5.1. Covenant Not to Sue.
Each member of each Group covenants not to sue or maintain any claim,
cause of action, demand, cross-action, counterclaim, third-party action or
other form of pleading against a Provider, a Provider's Representatives,
sources of information, affiliated Credit Reporting Agencies, and/or System
Affiliates (if applicable) arising out of or relating in any way to the
accuracy or inaccuracy and/or validity or invalidity of any of the Provider
Information, even if caused by the negligence of any such Person; provided,
however, this Section shall not be applicable if the injury is caused by the
intentional misconduct of such Person.
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Section 5.2. Release.
Each member of each Group recognizes that the accuracy of any Provider
Information furnished is not warranted or guaranteed by the Provider thereof
for any purpose, and releases the Provider and the Provider's Representatives,
sources of information, affiliated Credit Reporting Agencies and System
Affiliates (if applicable) from all liability in connection with the accuracy
or inaccuracy and/or validity or invalidity of the Provider Information and
from any and all charge, damage, loss and/or expense suffered by Recipient
resulting directly or indirectly from such matters, even if caused by the
negligence of any such Person; provided, however, this Section shall not be
applicable if the injury is caused by the intentional misconduct of such
Person. Each member of each Group shall include in its agreements with its
Subscribers and End Users a release concerning the information received from
Provider substantially in the form of the foregoing release obligation
contained in this Section 5.2.
Section 5.3. Limitation of Liability.
(a) Unless specifically provided to the contrary in this
Agreement, neither party shall, nor shall any member of the party's respective
Group, have any liability to the other party for any damages other than Direct
Damages whether based on contract, tort (including without limitation, that
caused by negligence, but excluding intentional misconduct), warranty,
guarantee or any other legal or equitable grounds. The liability of any member
of either Group to the other Group arising out of or resulting from a breach by
such member and/or its Representatives of its obligations under this Agreement
shall not exceed the Direct Damages incurred by the Recipient as a result of
such event.
(b) The limitations set forth in Section 5.3(a) shall not apply
to:
(i) Any failure by any member of either Group to pay fees
and expenses for the Information Services that are due and payable
hereunder up to the effective date of the termination of the
Agreement;
(ii) Claims arising under Section 5.1 (Covenant Not to
Sue) and/or Section 5.2 (Release);
(iii) Indemnification obligations under Article VI; and
(iv) Any incident or event resulting in damages, charges
and/or losses caused by the action or inaction of a member of either
Group constituting intentional misconduct.
(c) Except as set forth in Sections 6.1 and 6.2, neither party nor
the members of its Group shall be liable for any damages to the other party or
the members of its Group if and to the extent caused by the failure of such
other party or the members of its Group to perform its responsibilities under
this Agreement.
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(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN ANY SECTION OF
THIS AGREEMENT EXCEPT THIS SECTION 5.3, INCLUDING ANY AND ALL FUTURE AMENDMENTS
AND ADDENDA, NEITHER PARTY, NOR ANY OF ITS REPRESENTATIVES, INFORMATION
SOURCES, LICENSORS, SYSTEM AFFILIATES OR MEMBERS OF ITS RESPECTIVE GROUP WILL
BE RESPONSIBLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR SPECIAL
DAMAGES, INCLUDING LOST PROFITS, WHETHER OR NOT THE OTHER PARTY HAS BEEN
INFORMED OF OR MIGHT OTHERWISE HAVE ANTICIPATED OR FORESEEN THE POSSIBILITY OF
SUCH DAMAGES.
ARTICLE VI
INDEMNIFICATION
Section 6.1. ChoicePoint Indemnification of the Equifax Group.
If the Distribution occurs, on and after the Distribution Date,
ChoicePoint shall indemnify, defend and hold harmless each member of the
Equifax Group and each of their respective Representatives (the "Equifax
Indemnitees") from and against any and all Indemnifiable Losses incurred or
suffered by any of the Equifax Indemnitees and arising out of or in connection
with (a) any breach of Sections 5.1 (Covenant Not to Sue) or 5.2 (Release) by
a member of the ChoicePoint Group, or (b) breach of Section 8.2
(Confidentiality); except such damages, loss, liability and expense resulting
from the willful misconduct of a member of the Equifax Group.
Section 6.2. Equifax Indemnification of the ChoicePoint Group.
If the Distribution occurs, on and after the Distribution Date,
Equifax shall indemnify, defend and hold harmless each member of the
ChoicePoint Group and each of their respective Representatives (the
"ChoicePoint Indemnitees") from and against any all Indemnifiable Losses
incurred or suffered by any of the ChoicePoint Indemnitees and arising out of
or in connection with (a) any breach of Sections 5.1 (Covenant Not to Sue) or
5.2 (Release) by a member of the Equifax Group, or (b) breach of Section 8.2
(Confidentiality); except such damages, loss, liability and expense resulting
from the willful misconduct of a member of the ChoicePoint Group.
Section 6.3. 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.
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ARTICLE VII
INDEMNIFICATION PROCEDURES
Section 7.1. 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 VI (other than in connection with any
Action or claim subject to Section 7.2), 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 7.1
that is past due shall bear interest at a simple rate of interest per annum
equal to the Prime Rate plus 2%.
Section 7.2. Notice and Defense of Third Party Claims.
(a) Promptly following the earlier of (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 Party, in either case, with
respect to which indemnification may be sought pursuant to Article VI of 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 7.2 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,
assumption of 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 7.2 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
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shall be deemed to have acknowledged, as between the parties hereto, its
liability to the Indemnified Party 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 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 remedy or relief, other than monetary
damages for which the Indemnifying Party shall be responsible hereunder, shall
be applied to or against the Indemnified Party, 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
that arises under Article VI, 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 with respect
thereto by the Indemnified Party; 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 by settlement, compromise, or the
final nonappealable judgment of a court of competent jurisdiction or
otherwise), or, in the case of any Third Party Claim as to which the
Indemnifying Party has not acknowledged liability, within fifteen (15) days
after such Indemnifying Party's objection has been resolved by settlement,
compromise or the final nonappealable judgment of a court of competent
jurisdiction.
ARTICLE VIII
CONFIDENTIALITY
Section 8.1. Exclusions.
Notwithstanding anything to the contrary contained in this Agreement, "
Company Information" does not include any information that (a) 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
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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
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 8.2. Confidentiality.
(a) Each party acknowledges, and shall cause each member of its
Group to acknowledge, that it is in possession of significant confidential or
proprietary information concerning the business operations and tangible and
intangible property of the members of the other Group.
(b) Each party shall, and shall ensure that each member of its
Group shall, (i) receive and hold the Company Information of the other party 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 Company Information; and (iv) not use,
reproduce, distribute, disclose, or otherwise disseminate the Company
Information of the other party except as authorized pursuant to this Agreement
and in the Supplemental Agreements attached hereto, as amended from time to
time, or any Ancillary Agreement, or except pursuant to a requirement of a
governmental agency or of law, without similar restrictions or other
protections against public disclosure; provided, however, the receiving party
must first give written notice of such required disclosure to the disclosing
party, take reasonable steps to allow the disclosing party to seek to protect
the confidentiality of the Company Information required to be disclosed, 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, 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.
(c) The receiving party may make disclosures of the Company
Information of the disclosing party only to Representatives of the receiving
party (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. ChoicePoint and Equifax agree, and
shall ensure that each member of its respective Group agrees, to monitor each
such Representative, enforce such agreements with its Representatives, and,
upon request by the other party, promptly to
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furnish to the other party a list of the receiving party's Representatives
having had access to such Company Information.
(d) Within thirty (30) days following the receipt of a written
request from the disclosing party, the receiving party must deliver to the
disclosing party all tangible materials containing or embodying the disclosing
party's Company Information applicable to a triggering event, together with a
certificate executed by the president or any vice president of the receiving
party certifying that all such materials in the receiving party's possession
have been delivered to the disclosing party or, at the disclosing party's
option, certify that all such materials in the receiving party's possession
have been destroyed. For the purposes of this Section 8, a "triggering event"
means the cessation of the provision of an Information Service by the
disclosing party to the receiving party under this Agreement or the termination
of the Agreement.
(e) The covenants of confidentiality set forth in this Agreement
(i) will apply after the Effective Time to all Company Information disclosed to
the receiving party before and after the Distribution Date and (ii) will
continue and must be maintained from the Effective Time through the termination
of the relationship under this Agreement between Equifax and ChoicePoint and
(A) with respect to Proprietary Information, at any and all times after the
termination of the relationship under this Agreement between Equifax and
ChoicePoint during which such Proprietary Information retains its status as a
"trade secret" under applicable law; and (B) with respect to Confidential
Information, for the shorter of a period equal to two (2) years after
termination of the relationship under this Agreement between Equifax and
ChoicePoint, or until such Confidential Information no longer qualifies as
confidential under applicable law.
Section 8.3. Employee Confidentiality Agreements.
The members of the Group have entered into confidentiality and
non-disclosure agreements with their respective employees. To the extent that
any employee during or after employment violates such agreement and such
violation is or may in the future be to the detriment of the other party's
Group, at the written request of the affected party, the other Party shall
promptly take remedial measures with such employee if and to the extent
reasonable under the circumstances to preserve the value of the Information
Services and to enforce its obligations hereunder. The party employing the
affected employee 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 party's Information Services or business.
Each party shall bear all of its own out-of-pocket costs of pursuing such
action and the other party shall cooperate in connection therewith.
Section 8.4. 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 Article VIII, the
non-breaching party, in addition to any other remedies it may have at law or in
equity, will be entitled to a restraining order, injunction, or other
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similar remedy in order to specifically enforce the provisions of this Article
VIII. Each party specifically acknowledges, and shall cause each member of its
respective 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 Article VIII. 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.
(b) The receiving party shall notify the disclosing party upon
discovery of any unauthorized use or disclosure of Company Information, or any
other breach of Article VIII 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 Article VIII.
Section 8.5. Competitive Activities.
Subject to the rights and obligations set forth in Section 2.3 and
Article VIII, 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 the
members of its Group, and the parties' communications hereunder will not serve
to impair the right of either party or any member of its respective 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.
Section 8.6. No Implied Rights.
All Company Information is and shall remain the property of the
disclosing party and/or the member of its respective Group. By disclosing
Company Information to the receiving party's Group, the disclosing party and/or
the members of its respective 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 respective Group.
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ARTICLE IX
CONTINUED ASSISTANCE
Section 9.1. Continued Assistance and Transition.
(a) Following the Effective Time, Equifax and ChoicePoint shall,
and shall cause each member of the Group to, cooperate in the orderly purchase
and sale of Information Services hereunder. From time to time, at Equifax's or
ChoicePoint's request and without further consideration, the other party shall,
and shall cause each member of the other party's Group, as applicable, to
execute, acknowledge and deliver such documents, instruments or assurances and
take such other action as the requesting party may reasonably request to more
effectively evidence compliance with the Supplemental Agreements applicable to
the purchase and sale of Information Services as reflected in the Supplemental
Agreements for the applicable Information Services in effect from time to time,
as amended and/or modified by the Provider.
Section 9.2. Litigation Cooperation.
(a) Upon written request, Equifax and ChoicePoint shall, and shall
cause each member of its Group to, use reasonable efforts to make available to
the other its Representatives as witnesses or consultants to the extent that
such persons may reasonably be required in connection with any legal,
administrative or other proceedings, with respect to the Information Services
provided thereby, arising out of the business of the other party or of any
member of the other party's Group prior to the Distribution Date in which the
requesting party or any member of its Group may from time to time be involved,
at the cost and expense of the requesting party.
(b) Equifax and ChoicePoint shall, and shall cause each member of
its respective Group, to use reasonable efforts to notify the other if it
learns of a potential or actual third party claim related to the Information
Services provided pursuant to this Agreement to be brought against any member
of the other's Group.
ARTICLE X
TERM AND TERMINATION
Section 10.1. Term.
(a) The term of this Agreement shall commence at the Effective
Time and shall continue for one (1) year and shall be automatically renewed for
separate, successive one-year periods, unless terminated in accordance with
Section 10.2.
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Section 10.2. Termination.
(a) Either party may terminate this Agreement upon at least ninety
(90) days written notice given prior to the expiration of the then-current
one-year term.
(b) Either party may terminate this Agreement:
(i) by giving notice to the other if the other party
shall have failed within thirty (30) days after the receipt of written
notice to remedy any material breach of this Agreement set forth in
the notice;
(ii) if the other Party becomes insolvent, or is unable to
pay its debts as due, or enters into or files or has filed or
commenced against it a petition, arrangement, action or other
proceeding seeking relief or protection under the bankruptcy laws of
the United States or any similar laws of the United States or any
State of the United States or of any other country or jurisdiction, or
has a trustee, receiver or liquidator appointed for all or a
substantial part of its assets.
(c) In addition, either party may cease to provide an Information
Service to the other party's group at any time upon thirty (30) days written
notice to the other party or a shorter time if necessary if, in such party's
reasonable judgment, continuation of the Information Service becomes
impossible, impractical, or undesirable due to legal, economic, or policy
constraints or circumstances.
Section 10.3. Effect of Termination and Expiration.
Upon termination or expiration of the term of this Agreement, all
rights and obligations of the parties under this Agreement will immediately
cease and terminate (except for the rights and obligations pursuant to Articles
IV (Representations and Warranties), V (Limitations on Actions and
Liabilities), VI (Indemnification), VII (Indemnification Procedures), and VIII
(Confidentiality) and XI (Miscellaneous) and Sections 9.2 and 10.3, and the
definitions required thereby which will survive such termination or
expiration), and neither party will have any further obligation to the other
party with respect to this Agreement, except for (a) fees and reimbursable
expenses payable to the other party accrued but unpaid at the date of
termination or expiration, and (b) the provisions of this Agreement which are
specifically designated herein as surviving such termination or expiration.
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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 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 overnight courier, or (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) 885-8682
with a copy to:
Thomas F. Chapman
President and Chief Operating Officer
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
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with a copy to:
Derek V. Smith
President and Chief Executive Officer
Fax: (770) 752-6243
Either party may, by written notice 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 terms,
provision or condition of this Agreement.
Section 11.4. Entire Agreement.
This Agreement and Exhibits constitute 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.
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 VI and VII 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 do, or cause to be done, all things
reasonably necessary, proper or advisable under applicable laws, regulations
and agreements or otherwise to consummate and
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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; provided
that no party hereto shall be obligated to pay any consideration therefor
(except for filing fees and other similar charges) to any third party from whom
such consents, approvals and amendments are requested or to take any action or
omit to take any action if the taking of or the omission to take such action
would be unreasonably burdensome to the party or its respective Group or the
business thereof.
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.
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 be resolved only 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 of this Section 11.10 hereof 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 of a Dispute, 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
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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 negotiations within
sixty (60) days of the first party's notice, the Dispute shall be submitted,
upon application of either party, for resolution by binding 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 its 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.
(d) Notwithstanding anything to the contrary in this Section
11.10, the Presidents of Equifax and ChoicePoint shall have the authority to
stay the time periods set forth in this Section 11.10 upon mutual agreement to
take such action.
(e) The parties agree to continue performing their respective
obligations under the Agreement while the Dispute is being resolved unless and
until such obligations are terminated or expire in accordance with the
provisions of the Agreement.
(f) Neither party will be compensated for any time or expense
related to the Dispute resolution process. Each party will treat the existence
and results of the dispute resolution process as Company Information of the
party. Neither party may disclose the existence of the Dispute, evidence
taken, resulting opinions or settlements of the Dispute hereunder without the
prior written consent signed by the other party. This prohibition shall not
apply to disclosures to counsel, made in documents filed with a court or
required by law.
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
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of force majeure; (b) use reasonable efforts to avoid or remove the cause of
its non-performance; and (c) proceed to perform its obligations with dispatch
when such cause is removed.
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:
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Date:
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CHOICEPOINT INC.
By:
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Title:
----------------------------
Date:
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