Experian Affiliate Services Agreement - Experian Information Solutions Inc. and Factual Data Corp.
EXPERIAN AFFILIATE SERVICES AGREEMENT
(LEASE EXPANSION - SOUTH TEXAS)
December 1, 2000 November 31, 2010
----------------------------- ------------------------------------------
(Effective Date) (Expiration Date)
This Experian Affiliate Services Agreement (the "AGREEMENT") is made
and entered into effective as of the date set forth above (the "EFFECTIVE DATE")
by and between Experian Information Solutions, Inc., an Ohio corporation acting
through its Information Solutions Division and having a place of business at 505
City Parkway West, Orange, California 92868 ("EXPERIAN") and Factual Data, a(n)
Colorado corporation having a place of business at 5200 Hahns Peak Drive,
Loveland, Colorado 80538 ("AFFILIATE").
RECITAL
Experian desires to provide and Affiliate desires to receive certain
credit reporting services on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual premises and covenants
set forth herein, and intending to be legally bound, the parties hereby agree as
follows:
SECTION 1
DEFINITIONS
The following definitions of certain words and phrases used in this
Agreement apply whenever they are used with initial capitalization. Additional
definitions used in this Agreement are set forth in Section 5.
1.1 ADDITIONAL SERVICES. As defined in Section 3.7 of the Agreement.
1.2 AFFILIATE. As defined in the first paragraph of this Agreement.
1.3 AFFILIATE LEASED DATA BASE. All credit information and records
stored in the Experian System, no matter how or by whom collected, associated
with consumers having current addresses within the Affiliate's Leased Zip Code
Area.
1.4 AFFILIATE LEASED ZIP CODE AREA. The geographic area defined by
those United States Postal Service Zip Codes set forth in Exhibit C, plus any
additional Zip Code Areas designated by the United States Postal Service within
such geographic area.
1.5 AFFILIATE SUBSCRIBERS. Credit grantors and other customers of
Affiliate to whom consumer credit or other information from the Experian System
is furnished by Affiliate.
1.6 ANCILLARY SERVICES. Those services provided by Experian which are
identified as ancillary services on Exhibit A hereto, as such may be amended
from time to time by Experian.
Page 1
<PAGE>
1.7 CROSS ACCESS CHARGE. Fees paid by Experian or Affiliate for sales
relating to inquiries on consumers having current addresses within the Zip Code
Area of the other, including but not limited to the following:
1.7.1 STANDARD CROSS ACCESS CHARGE. The separate fee to be
paid by Experian or Affiliate respectively for sales directly to
end-users when an Experian Subscriber inquires regarding a consumer
having a current address within Affiliate's Leased Zip Code Area or
when an Affiliate Subscriber inquires regarding a consumer having a
current address within Experian's Zip Code Area.
1.7.2 RESELLER CROSS ACCESS CHARGE. The separate fee to be
paid by Experian or Affiliate respectively for sales through resellers
when an Experian Subscriber inquires regarding a consumer having a
current address within Affiliate's Leased Zip Code Area or when an
Affiliate Subscriber inquires regarding a consumer having a current
address within Experian's Zip Code Area, and other cross access charges
determined in accordance with Experian policy and applicable to Other
Experian Affiliates generally.
1.7.3 CONSUMER DIRECT CROSS ACCESS CHARGE. The separate fee to
be paid by Experian or Affiliate respectively for sales directly to
individual consumers of that consumer's own credit report when that
consumer has a current address within Affiliate's Leased Zip Code Area
or when that consumer has a current address within Experian's Zip Code
Area.
1.8 DIRECT MARKETING SERVICES. Direct Marketing Services are those non
credit, direct marketing services identified as such on Exhibit A. Such services
may be added, deleted or changed from time to time by Experian's Marketing
Solutions Division (as the same may exist from time to time).
1.9 EFFECTIVE DATE. The date identified above as the effective date of
this Agreement.
1.10 EXPERIAN. The Information Solutions Division of Experian
Information Solutions, Inc.
1.11 EXPERIAN DATA BASE. All consumer credit information and records
stored in the Experian System, no matter how or by whom collected, associated
with consumers having current addresses within Experian's Zip Code Area.
1.12 EXPERIAN NETWORK. Data lines, data adapters, and other related
equipment (including the personnel needed to operate the same) operated by or
for Experian or by an independent third party to provide communication between
Affiliate and Experian's computer center. The Experian Network does not include
local or long distance lines to be used by Subscribers to gain access to the
Experian Network.
Page 2
<PAGE>
1.13 EXPERIAN SUBSCRIBERS. Credit grantors and other customers of
Experian to whom consumer credit or other information from the Experian System
is furnished by Experian, including without limitation National Accounts.
1.14 EXPERIAN SYSTEM. The computerized consumer credit reporting system
owned, maintained and operated by Experian. The Experian System does not include
any other computerized systems operated by Experian such as the systems used to
create Direct Marketing Services, business credit reports, business marketing
services and real property reports.
1.15 EXPERIAN'S ZIP CODE AREA. At any relevant time, all geographic
areas except (i) the Affiliate Leased Zip Code Area and (ii) the zip code areas
of Other Experian Affiliates (except to the extent of Experian's ownership
interest in leased affiliate areas).
1.16 INITIAL TERM. As defined in Section 2 of the Agreement.
1.17 INQUIRY RESPONSE. Each response by the Experian System in the form
of a basic Experian consumer credit profile report, whether transmitted by
teleprinter, central processing unit or otherwise, to a request for consumer
credit information by Affiliate or an Affiliate Subscriber including (i) a
record located by the Experian System in the Affiliate Leased Data Base, the
Experian Data Base or an Other Experian Affiliate data base on the Experian
System; or (ii) a response that no record could be located by the Experian
System. Each Inquiry Response shall be in a format comparable to that used by
Experian in furnishing credit information to its own Subscribers.
1.18 KEY ACCOUNT PROGRAM. The program regarding sales and pricing of
Services by Affiliate to certain qualifying Subscribers as defined pursuant to
Experian's written policy from time to time setting forth such program.
1.19 NATIONAL ACCOUNTS. As defined in Section 18.1 of the Agreement.
1.20 OTHER EXPERIAN AFFILIATE. Any credit bureau which, at any relevant
time: (a) has in effect an agreement with Experian to use and pay fees in
connection with services provided through the Experian System; and (b) has data
stored on the Experian System (whether owned by such credit bureau, Experian or
both) and is generally authorized to market and sell consumer credit information
obtained through the Experian System.
1.21 OTHER EXPERIAN AFFILIATE SUBSCRIBERS. Customers of Other Experian
Affiliates.
1.22 RENEWAL TERM. As defined in Section 2 of the Agreement.
1.23 SERVICES. The Inquiry Responses, Ancillary Services and Additional
Services Experian provides to Affiliate as identified on Exhibit A hereto, as
such may be amended from time to time by Experian. Services do not include
Direct Marketing Services, which are addressed in Section 3.8 of this Agreement.
1.24 SUBSCRIBERS. Affiliate Subscribers, Experian Subscribers and
subscribers of Other Experian Affiliates.
Page 3
<PAGE>
1.25 TERM. As defined in Section 2 of the Agreement.
SECTION 2
TERM OF AGREEMENT
2.1 TERM. Subject to early termination as set forth in this Agreement,
the term of this Agreement (the "TERM") is the period consisting of the Initial
Term and, if this Agreement is renewed, any Renewal Term(s).
2.2 INITIAL TERM. The initial term of this Agreement (the "INITIAL
TERM") shall commence on the Effective Date and continue until 11:59 p.m.,
Pacific time, on the Expiration Date noted at the top of the first page of this
Agreement.
2.3 RENEWAL TERM. Unless one of the parties delivers to the other
written notice of such party's intent not to renew this Agreement no later than
six (6) months prior to the expiration of the Initial Term, this Agreement will
renew automatically and without further action by either party for an additional
one (1) year period (a "RENEWAL TERM"). Thereafter, this Agreement will continue
to renew automatically for additional one (1) year periods (each a "Renewal
Term") unless and until either party delivers to the other a written nonrenewal
notice no later than six (6) months prior to the expiration of such Renewal
Term.
SECTION 3
EXPERIAN RESPONSIBILITIES
3.1 LEASE AND ASSIGNMENT.
3.1.1 LEASE. In consideration of the payment of the Revenue
Transfer Fee payable in monthly installments as set forth in Item 1 of
Exhibit B ("REVENUE TRANSFER FEE") during the first five years of the
Term, and in consideration of the promises of Affiliate contained
herein, Experian grants Affiliate the nonexclusive right to use, during
the Term, the Affiliate Leased Data Base on the terms and conditions
set forth herein. AFFILIATE HAS SUBSTANTIAL KNOWLEDGE OF THE OPERATIONS
OF EXPERIAN AND IN MAKING THE PAYMENT SPECIFIED HEREIN, RELIES ON ITS
KNOWLEDGE OF THE CREDIT REPORTING BUSINESS IN THE AFFILIATE LEASED ZIP
CODE AREA AND NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THERETO ARE
MADE BY EXPERIAN OR RELIED ON BY AFFILIATE.
3.1.2 ASSIGNMENT. Experian hereby assigns to Affiliate all of
the rights and obligations under the subscriber agreements of customers
located in the Affiliate Leased Zip Code Area specified in Exhibit C
and having subscriber numbers with preambles of TTX1, TTX3, TTX4, TTX5,
TTX6, TSPX, and TBDX, except those agreements relating to National
Accounts and Resellers. Affiliate hereby accepts such assignment, and
will perform all of the duties under such subscriber agreements as if
it were Experian. Affiliate may not lease or sublease any part or
interest in the Affiliate Leased Data Base to any third party.
Page 4
<PAGE>
3.1.3 REVENUE TRANSFER FEE ADJUSTMENT AND REBATE.*
3.1.4 LOCAL UNIT SHORTFALL.*
Page 5
* The contents of Sections 3.1.3 and 3.1.4 have been omitted pursuant to a
request for confidential treatment submitted to the Securities and Exchange
Commission.
<PAGE>
3.2 GENERALLY. Experian shall operate and maintain the Experian System
during the Term of this Agreement in accordance with this Agreement. Experian
shall have the exclusive right and responsibility to continue operation and
management of the Experian System including, without limitation, the sole right
to designate and to change any or all equipment, software, specifications,
formats, practices, policies and procedures which directly or indirectly
comprise, relate to or affect the Experian System and the sale of Services from
the Experian System.
3.3 CHANGES TO EXPERIAN SYSTEM. Experian shall use its best efforts to
(a) give Affiliate at least thirty (30) days advance written notice of any
planned changes in the Experian System which will materially affect the credit
reporting services to be furnished by Experian to Affiliate pursuant to this
Agreement; and (b) make such changes consistent with its obligations under
Section 3.4, below. Experian may provide Affiliate instructions for implementing
any such changes, with which Affiliate agrees to comply.
3.4 LEVEL OF SERVICE. Experian's obligation to furnish the Services
shall be no less nor more extensive than the normal service provided by Experian
to Experian Subscribers. Consistent with the foregoing, Experian may impose
terms and conditions relating to the sale of the Services, and Affiliate agrees
to comply with such terms and conditions, which are incorporated into and made a
part of this Agreement by this reference. In the event of equipment or labor
shortages, communication problems or similar problems, Experian will allocate
available resources in a prudent manner without arbitrarily discriminating in
favor of its own direct credit reporting business.
3.5 HOURS OF EXPERIAN SERVICE. Experian shall provide basic reporting
services to Affiliate during Experian's normal service hours. Such hours shall
be published by Experian from time to time, but are subject to change without
notice. Affiliate will be provided the same hours of service as Experian
Subscribers for the same time zone and region. If there is a service
interruption, Experian shall use its best efforts to restore service as promptly
as practical in light of the cause of interruption and requirements for service
restoration.
3.6 TRAINING. Experian will aid in training, at Experian's facility, a
reasonable number of Affiliate personnel whose duties relate to Affiliate's
credit reporting services provided hereunder. All expenses incurred by Affiliate
and its personnel in attending such training, including without limitation,
travel, room and boarding expenses, shall be the sole responsibility of
Affiliate. Upon reasonable request, and at the expense of Affiliate, Experian
will send its personnel to Affiliate's facility to provide training.
3.7 ADDITIONAL SERVICES. From time to time, Experian may make available
to Affiliate, upon the then prevailing prices, terms and conditions, consumer
credit reporting services in addition to those Inquiry Responses and Ancillary
Services agreed to be provided by Experian herein ("ADDITIONAL SERVICES"). A
list of those Additional Services Experian is currently offering to Affiliate is
set forth in Exhibit A, and Experian's current pricing is set forth in Item 3 of
Exhibit B, subject to change from time to time during the Term in Experian's
sole discretion. If Affiliate desires to have the right to sell other Additional
Services made available
Page 6
<PAGE>
to it, Affiliate shall execute an addendum to this Agreement in a form
satisfactory to Experian evidencing Affiliate's agreement to the terms and
conditions applicable to the sale of such other Additional Services, and such
addendum will be attached to, incorporated into and made a part of this
Agreement by this reference. The sale to Affiliate of Additional Services shall
be at the prices and on the terms and conditions imposed by Experian unless
otherwise agreed in such addendum.
3.8 DIRECT MARKETING SERVICES. Experian's Marketing Solutions Division
appoints Affiliate to act as a nonexclusive agent for the sale of Direct
Marketing Services to purchasers physically located within the Affiliate Leased
Zip Code Area. Affiliate acknowledges that in selling Direct Marketing Services,
Affiliate is acting as the agent of Experian's Marketing Solutions Division.
Affiliate will use Experian approved contract terms in selling all Direct
Marketing Services and shall not have the authority to alter such terms. In
certain cases, Experian may have indemnified its supplier of such services; in
such cases, Affiliate will likewise indemnify Experian when Affiliate is
notified of Experian's indemnity obligation.
The location of the purchaser for purposes of the prior paragraph is determined
by the purchaser and/or the physical location of the persons within the
purchaser's organization who have the authority over specific project budgets.
Nonbanking subsidiaries and parents of banks shall be considered as being
located at the physical location of the subsidiary and parent, respectively.
3.9 TRANSACTION REPORTS. Experian will provide Affiliate with a monthly
invoice and back-up reports indicating the Services purchased by Affiliate and
Affiliate Subscribers.
SECTION 4
SPECIFICATIONS
4.1 FACILITIES SPECIFICATIONS. Experian may provide to Affiliate, and
may from time to time revise, the specifications for the facilities needed by
Affiliate to provide credit reporting services to Affiliate Subscribers. Those
facilities specifications may include, by way of example, size, construction,
temperature and location (for purposes of telephone availability). Affiliate
shall bear the responsibility for obtaining and preparing a facility in
accordance with such specifications.
4.2 NONCOMMUNICATIONS EQUIPMENT, COMMUNICATIONS EQUIPMENT, NETWORK AND
SOFTWARE SPECIFICATIONS. Experian shall have the right to provide to Affiliate,
and may from time to time revise, the specifications for terminals, printers,
communications lines, modems and all other noncommunications equipment,
communications equipment, the Experian Network and software needed by Affiliate
to provide credit reporting services from the Experian System to Affiliate
Subscribers. Affiliate shall bear the responsibility, cost and expense of the
shipping, installation, maintenance and removal of such equipment software and
other items specified by Experian. Affiliate may obtain such equipment, software
and other items from Experian if Experian is making such equipment, software or
other items generally available to Experian Subscribers, or from suppliers
approved by Experian, such approval not to be unreasonably withheld. If
Affiliate fails to comply with specifications provided by Experian hereunder,
Experian shall have the right, in addition to any other remedies available to
it, to charge Affiliate on a time and materials basis for all training,
technical development,
Page 7
<PAGE>
troubleshooting and other support due to Affiliate's failure to comply. Experian
will not be responsible for any outages, downtime, slow response, connectivity
or other problems resulting from Affiliate's failure to comply.
4.3 LOCAL ACCESS LINES. Affiliate shall provide at its sole cost and
expense, either directly or through a third party, the local telephone and data
transmission lines necessary for Affiliate Subscribers to gain access to the
Experian Network. Affiliate shall not permit Affiliate Subscribers to access the
Experian Network using communication lines not paid for by Affiliate.
SECTION 5
PRICES, FEES AND CHARGES
5.1 AFFILIATE INQUIRY RESPONSE FEE. Affiliate shall pay Experian the
inquiry response fee set forth in Item 1 of Exhibit B (the "INQUIRY RESPONSE
FEE") for each Inquiry Response. The Inquiry Response Fee may be adjusted
annually at the end of Experian's fiscal year, subject to Section 5.3.
5.2 ANCILLARY SERVICE CHARGES.
5.2.1 ANCILLARY SERVICES. "ANCILLARY SERVICES" are those
Experian services set forth on Item 2 of Exhibit B, including FACS+,
Direct Check, each risk model response, Profile Summary and such
additional service(s) as Experian elects to include as Ancillary
Services; provided, however that Affiliate shall have access to all
such Ancillary Services that are generally available to Other Experian
Affiliates.
5.2.2 ANCILLARY SERVICE FEE. Affiliate shall pay Experian the
applicable fee set forth in Item 2 of Exhibit B (the "ANCILLARY SERVICE
FEE"). The Ancillary Fee may be adjusted annually at the end of
Experian's fiscal year, subject to Section 5.3.
5.3 CHANGES IN CERTAIN FEES AND CHARGES. In addition to any other right
set forth herein, Experian may, upon not less than thirty (30) days written
notice, but not more often than once in each Experian fiscal year, change the
Inquiry Response Fee and/or the Ancillary Service Fee. The cumulative amount of
any increase pursuant to this Section 5.3 (when expressed as a percentage of the
initial fee or charge) shall not be in excess of the cumulative percentage
change (measured from the Effective Date shown on the first page hereof), if
any, in the level of the Consumer Price Index (All Urban Consumers, Base Period:
l982-84 = l00) published by the U. S. Department of Labor, Bureau of Labor
Statistics. Further, if the cost to Experian, as reasonably determined by
Experian in accordance with generally accepted accounting principles, of
providing any services hereunder increases as a reasonable consequence of
federal, state or local laws, ordinances or other regulatory, administrative or
governmental acts or measures, then Experian may, upon not less than sixty (60)
days written notice, increase such charges by an amount determined by Experian
in good faith to be appropriate based, at least in part, on the geographic area
affected the acts or measures and applied in such a way that Experian does not
arbitrarily discriminate in favor of its own direct credit reporting business.
Page 8
<PAGE>
5.4 NETWORK, COMMUNICATIONS EQUIPMENT AND NONCOMMUNICATIONS EQUIPMENT
CHARGE. Affiliate shall also pay each month the amount set forth as network,
communications equipment and noncommunications equipment charges in Item 1 of
Exhibit B (the "NETWORK, COMMUNICATIONS AND EQUIPMENT CHARGES"). In addition,
Affiliate acknowledges that Experian has expended significant sums of money to
install the Experian Network and may incur ongoing expenditures related to the
maintenance, upkeep and modification of the Experian Network. Such expenditures
are to be equitably shared by Experian, Affiliate and Other Experian Affiliates.
Affiliate shall pay Experian for noncommunications equipment, communications
equipment and the Experian Network in accordance with Experian's price schedule
in effect from time to time, currently as set forth in Item 1 of Exhibit B.
Experian may, once during each Experian fiscal year and upon not less than
thirty (30) days written notice, change such charges. If such equipment is
obtained from Experian, the price therefor shall be Experian's then current
normal charge. Each party reserves the right to charge the other for usage of
the other's communication lines by its Subscribers. The Network, Communications
and Equipment Charges include only normal preventive and remedial maintenance
during established normal service hours. Affiliate shall pay separately for all
other services and all other charges imposed by Experian or any third party
vendor.
5.5 RECURRING CHARGE. The amount set forth as other recurring charges
in Item 1 of Exhibit B (the "OTHER CHARGES"). Other Charges shall include
charges for usage of Experian's communications lines by Affiliate Subscribers,
leased equipment, data storage, conversion charges and other additional charges
imposed if Affiliate obtains from Experian teleprinters, computers, software or
other goods or services not otherwise covered in this Section 5. Additional
amounts for items not enumerated in this Section 5.5 shall be included within
Recurring Charges only on terms and conditions mutually agreed to by the parties
and set forth herein or in a separate agreement.
5.6 ADMINISTRATIVE ALLOWANCE. Each month Experian will reduce
Affiliate's invoice in an amount equal to the percentage set forth in Item 1 of
Exhibit B of the total number of Inquiry Responses made each month
("ADMINISTRATIVE ALLOWANCE"). The Administrative Allowance percentage may be
reviewed annually on the basis of Affiliate's actual administrative usage and
may be adjusted by Experian once each Experian fiscal year as appropriate.
5.7 CROSS ACCESS FEES.
5.7.1 PAYMENT OF CROSS ACCESS FEES. Each party shall pay to
the other the applicable Cross Access fee pursuant to Section 8 of this
Agreement. In addition, Affiliate shall pay to Experian the
Affiliate-to-Affiliate Administrative Fee set forth in Item 4 of
Exhibit B (the "AFFILIATE-TO-AFFILIATE ADMINISTRATIVE FEE") whenever
Affiliate sells to Affiliate Subscribers credit information contained
in an Other Experian Affiliate data base.
5.7.2 CHANGE IN STANDARD CROSS ACCESS FEE. At any time during
the Term of this Agreement, not more that once in each Experian
accounting fiscal year (determined in accordance with Experian
accounting conventions) and upon thirty
Page 9
<PAGE>
(30) days written notice, Experian may change the Standard Cross Access
Fee set forth in Item 4 of Exhibit B.
5.7.3 ADDITIONAL CROSS ACCESS FEES. Experian has established
the separate Reseller Cross Access Fee and Consumer Direct Cross Access
Fee reflected in Item 4 of Exhibit B. Experian may from time to time
establish separate cross access charges applicable to Affiliate and to
Other Experian Affiliates generally. Experian may change the Reseller
Cross Access Fee, Consumer Direct Cross Access Fee and any separately
established cross access charge in keeping with changes made which are
applicable to Affiliate and to Other Experian Affiliates generally. The
determination as to whether an entity constitutes a reseller or other
entity or business as to which any cross access fee is applicable shall
be determined in accordance with Experian policy applicable to
Affiliate and Other Experian Affiliates generally and promulgated from
time to time. Experian may also denote industry exceptions to the
Reseller Cross Access Fee, which industries default to the Standard
Cross Access Fee.
5.8 CROSS MARKETING FEE. In addition to any and all other fees or
charges to be paid by Affiliate hereunder, Affiliate shall pay to Experian the
out-of-area charge identified in Item 5 of Exhibit B (the "CROSS MARKETING FEE")
in all cases when the physical location of Affiliate's Subscriber is outside of
Affiliate's Leased Zip Code Area and is within Experian's Zip Code Area or the
Zip Code area of an Other Experian Affiliate which is a leased Affiliate area.
5.9 DIRECT MARKETING SERVICES PRICING. For each Direct Marketing
Service sold through Affiliate as provided hereunder, Affiliate shall pay
Experian according to the then current prices published by Experian's Marketing
Solutions Division.
5.10 ADDITIONAL SERVICES. The sale of Additional Services pursuant to
Section 3.6 shall be at the prices and on the terms and conditions imposed from
time to time by Experian unless otherwise agreed to in an addendum to this
Agreement.
5.11 CONSUMER ASSISTANCE. Experian will perform the consumer assistance
function for consumers located in the Affiliate Leased Zip Code Area. Affiliate
will refer all such consumers to Experian's National Consumer Assistance Center
for assistance.
5.12 ROYALTIES FOR EXPERIAN SALE OF PRESCREEN AND QUEST. Experian will
credit Affiliate the amount shown in Item 6 of Exhibit B whenever Experian sells
Prescreen or Quest services generated from Affiliate's Leased Data Base only.
SECTION 6
PAYMENTS BY AFFILIATE
6.1 TIME FOR PAYMENT. All fees and charges, including those for
equipment, facilities and conversion services furnished Affiliate hereunder,
will be invoiced periodically in accordance with Experian's usual billing
procedures and shall be due and payable by Affiliate within thirty (30) days of
the date of the invoice. If within seven (7) days of the date of the invoice
Experian has not furnished Affiliate with transaction information sufficient for
Affiliate
Page 11
<PAGE>
to bill Affiliate Subscribers for the period covered by the invoice, the payment
due date will be delayed for a period of time equal to the delay by Experian in
furnishing such transaction information. If Affiliate does not pay invoiced
amounts within the allowed time period, it will also pay interest on the unpaid
amount at the rate of one and one half percent (1.5%) per month or the maximum
rate allowed by law, whichever is less.
6.2 INVOICES FINAL. Affiliates payment of an invoice shall not
constitute acceptance of Experian's invoice as accurate, provided, however, that
Affiliate shall have one hundred eighty (180) days from the date of invoice to
notify Experian of a dispute. Experian and Affiliate shall work together in good
faith to resolve the dispute as expeditiously as possible. In the event that
Experian has not received a notice of dispute within one hundred eighty (180)
days from the date of an invoice, the invoice will be deemed accepted in all
respects and neither party shall dispute any amount or make any claim for
payment, refund, rebate, credit or offset with respect thereto; provided,
however, that this provision shall not apply with respect to any tax payable by
Affiliate pursuant to Section 6.3 hereof.
6.3 TAXES. All prices and rates are exclusive of applicable federal,
state or local taxes. Affiliate shall pay or reimburse Experian for such taxes
excluding taxes based on net income, and such taxes may be added to any invoice
submitted hereunder. Affiliate will supply Experian, where appropriate, with
resale certificates or other documents required for obtaining tax exemptions.
6.4 PROTECTION OF RIGHTS. Affiliate shall keep the Affiliate Leased
Data Base free and clear of all levies, liens, encumbrances and other claims of
third parties. During the time a default hereunder exists without cure thereof
by Affiliate, Experian shall have the right to make any use of the Affiliate
Leased Data Base. Any attempt to transfer, assign or encumber the Affiliate
Leased Data Base in contravention of this Agreement shall be void and of no
force or effect.
SECTION 7
AFFILIATE RESPONSIBILITIES
7.1 GENERAL DUTIES. Affiliate shall actively advertise, promote and
sell the full line of Services and actively encourage Affiliate Subscribers to
contribute information to the Experian System.
7.2 PERSONNEL. Affiliate shall retain an appropriate number of
personnel reasonably necessary for the proper collection of consumer credit
information, provision of credit reporting services to Affiliate Subscribers,
connecting to the Experian System, sales and marketing, compliance with this
Agreement and compliance with all federal, state and local laws in connection
with the sale of credit reports from the Affiliate Leased Data Base and
operation of Affiliate's business.
7.3 TRAINING. Experian from time to time may provide and may require
that designated Affiliate personnel, at Affiliate's expense, attend and
successfully complete training programs or seminars to be conducted at
facilities reasonably selected by Experian. In addition, Affiliate shall provide
to each of its employees during each calendar year such additional training
Page 11
<PAGE>
related to Affiliate's consumer credit reporting business as may be reasonably
required to assure that Affiliate meets its obligations hereunder. If the
training required by Experian pursuant to this Section 7.3 will cause an undue
hardship on Affiliate, Affiliate may suggest to Experian reasonable alternatives
to personal attendance and Experian will consider in good faith such suggestions
as alternative methods of satisfying the training requirements hereunder.
7.4 FOLLOW-UP ASSISTANCE AND SERVICES. Affiliate shall be responsible
for maintaining in proper operating condition its facilities, equipment,
software, telecommunication lines and other items necessary for Affiliate to
utilize the Experian System. Affiliate may, from time to time, request the
assistance of Experian in a consulting capacity. Experian will provide, insofar
as Experian has the capacity and available personnel to do so, technical
assistance to enable Affiliate to utilize the Experian System. For such
technical assistance, Affiliate shall pay Experian for time, material and
out-of-pocket expenses incurred, determined in accordance with Experian's normal
and reasonable rates. Whenever feasible, such charges shall be estimated by
Experian and approved by Affiliate in advance.
7.5 UPDATING RESPONSIBILITIES. Affiliate shall use its best efforts to
provide or have provided to Experian updated consumer, inquiry and other
information so that the Affiliate Leased Data Base will remain at all times as
current and complete as possible; provided that Experian shall be responsible
for the acquisition of such public record data as it deems desirable in its sole
discretion. Affiliate may, with Experian's prior approval, obtain public record
data relating to consumers having current addresses within some or all of the
Affiliate Leased Zip Code for inclusion in the Affiliate Leased Data Base, and
Experian will reimburse Affiliate for the actual, out-of-pocket cost of the
acquisition of such data, provided that (i) a reasonable, good faith estimate of
such cost shall be disclosed to Experian prior to the time incurred by
Affiliate, and (ii) Experian may terminate such arrangement on thirty (30) days
written notice. Any expense associated with the acquisition or conversion of
information from an Affiliate Subscriber and the reconversion of Affiliate
Subscriber information to a form compatible with the Experian System shall be
borne by Affiliate unless such expense was occasioned by an act of Experian. All
costs and expenses associated with processing Affiliate Subscriber diskettes
will be the sole responsibility of the Affiliate. The price to Affiliate of
updating the Affiliate Leased Data Base is normally included in the charges set
forth in Section 5, provided that if the number of errors contained in such
information is higher than the average number of errors contained in information
supplied by other Experian Subscribers according to Experian's actual recent
experience, Experian may charge Affiliate for correcting all errors not caused
by Experian, in excess of the average number of errors, on a time and materials
basis. Without limitation of the foregoing, Affiliate shall use its best efforts
to obtain data from the non-contributing customers set forth on Exhibit D hereto
and as may additionally be identified by Experian from time to time in writing.
7.6 MINIMUM STANDARDS. Affiliate agrees to strictly comply with all
Experian rules, regulations, policies, standards and operating procedures
related to the Experian System and the use or sale of information and Services
from the Experian System and the use and sale of the Direct Marketing Services,
as such are communicated from time to time to Affiliate, including without
limitation the Key Account Program. Affiliate acknowledges receipt of Experian's
current Affiliate Policy. Experian shall use its best efforts to give Affiliate
at least thirty (30) days advance written notice of any material change or
addition to such rules,
Page 12
<PAGE>
regulations, policies, standards or operation procedures. If Affiliate fails to
comply, Experian shall have the right, in addition to any other remedies
available to it, to charge Affiliate on a time and materials basis for all costs
and expenses reasonably incurred by Experian as a result of such noncompliance.
Experian shall have no responsibility to Affiliate or liability for not
providing to Affiliate any Services as a result of Affiliates noncompliance.
Experian agrees that it will not arbitrarily discriminate in favor of its own
direct credit reporting business when imposing or applying those of its rules,
regulations, policies, standards and operating procedures related to the
Experian System and the use or sale of information and services from the
Experian System that it provides to Affiliate.
Without limitation of the foregoing, Affiliate acknowledges that Experian is a
member of the Individual Reference Services Group ("IRSG"). Experian has
provided Affiliate with a copy of the Industry Principles developed by the IRSG
(the "IRSG PRINCIPLES"). In the sale of Services hereunder, Affiliate agrees to
comply with the IRSG Principles and Experian's policies on the implementation of
such principles developed from time to time, including, without limitation, the
terms and conditions set forth on Annex A attached hereto and incorporated
herein by this reference.
7.7 AFFILIATE PERFORMANCE REQUIREMENT. Affiliate agrees that Experian
may from time-to-time establish, in Experian's sole but reasonable discretion,
marketing and sales performance parameters applicable to Affiliate and the
Affiliate Leased Zip Code Area. Such parameters may include, but not be limited
to, revenue goals, number of sales personnel, level of training participation,
product market penetration and general market presence. Affiliate shall meet or
exceed such parameters for the time frames specified therein.
7.8 EXCLUSIVITY. During the Term, neither Affiliate nor any business
entity controlled by or under common control with Affiliate shall enter into any
arrangement similar to that set forth in this Agreement for the sale and
distribution of credit reports or related services with any other consumer
reporting agency, whether inside or outside the Affiliate Leased Zip Code Area.
SECTION 8
CROSS ACCESS
8.1 EXPERIAN CROSS ACCESS RIGHTS. Experian may sell to Experian
Subscribers on an inquiry-by-inquiry basis, credit information contained in the
Affiliate Leased Data Base located under the: (i) current input address in
consideration of the payment of the applicable Cross Access Charge set forth in
Item 7 of Exhibit B; and (ii) previous input address outside the Affiliate
Leased Zip Code Area without payment of a Cross Access Charge.
8.2 AFFILIATE CROSS ACCESS RIGHTS. Affiliate may sell to Affiliate
Subscribers on an inquiry-by-inquiry basis, credit information contained in the
Experian Data Base located under the: (i) current input address upon payment of
the applicable Cross Access Charge specified in Item 4 of Exhibit B; and (ii)
previous input address outside the Experian Zip Code Area without payment of the
Cross Access
Page 13
<PAGE>
Charge. Access by Affiliate is limited to data contained in the Affiliate Leased
Data Base, Experian Data Base and the data bases of Other Experian Affiliates to
which Experian has access. Experian shall have the exclusive right to set the
cross access charge with Other Experian Affiliates for access to the Affiliate
Leased Data Base and Affiliate's access to the data bases of the Other Experian
Affiliates. Affiliate agrees to pay all the Affiliate-to-Affiliate
Administrative Fee and cross access charges applicable to Affiliate's access to
the data bases of Other Experian Affiliates.
8.3 NO LIMITATION. Except as specifically set forth in Section 5.8,
7.6, 12.1 and 18 nothing contained herein shall limit the rights of Experian and
Affiliate to select their own customers on whatever terms they deem advisable.
However, Experian shall be entitled to all revenues from Experian or Other
Experian Affiliates accessing the Affiliate Leased Data Base, except as
specified in Item 7 of Exhibit B.
SECTION 9
TERMINATION
9.1 MUTUAL TERMINATION. This Agreement may be terminated by the mutual
agreement of the parties at any time, but only by a written instrument signed by
a duly authorized representative of each of the parties.
9.2 TERMINATION FOR INSOLVENCY. Notwithstanding any other provision in
this Agreement, either party may terminate this Agreement, and such termination
shall be automatically effective upon delivery of notice, in the event that the
other party hereto (i) ceases to do business as a going concern; (ii) becomes
insolvent, bankrupt or the subject of a receivership; (iii) is unable or admits
in writing its inability to pay its debts as they become due; (iv) makes an
assignment for the benefit of creditors or enters into any arrangement with
creditors in lieu thereof; (v) authorizes, applies for or consents to the
appointment of a trustee or liquidator of all or a substantial portion of its
assets, or has a proceeding seeking such appointment commenced against it which
is not terminated within ninety (90) days of such commencement; (vi) files a
voluntary petition under any bankruptcy or insolvency law or files a voluntary
petition under the reorganization or arrangement provisions of the United States
pertaining to bankruptcy or other similar law of any jurisdiction, or has
proceedings under such laws instituted against it which are not terminated
within ninety (90) days of such commencement; or (vii) has any substantial part
of its property subjected to any levy, seizure, assignment or sale for or by any
creditor or governmental agency without said levy, seizure, assignment or sale
being lifted, released, reversed or satisfied, as applicable, within ten (10)
days.
9.3 TERMINATION BY EXPERIAN. Affiliate shall be in default and Experian
shall have the right, in addition to any other right or remedy available to it
at law or equity, to terminate this Agreement automatically effective upon
delivery of written notice to Affiliate, in the event that (i) Affiliate fails
to pay any amount due and payable to Experian hereunder and fails to cure such
nonpayment within ten (10) days after written notice that such amount has become
due and payable; or (ii) Affiliate fails to comply with the requirements of
Section 12 relating to Affiliate's compliance with all applicable laws,
regulations, and ordinances applicable to it, and all Experian interpretations
thereof and fails to cure such noncompliance within seventy-two (72) hours after
written notice describing the noncompliance; or (iii) Affiliate fails to perform
in any material respect any other obligation required to be performed by
Affiliate hereunder (including without limitation pursuant to Sections 7.5 and
7.7 hereof) and fails to cure such nonperformance within thirty (30) days after
written notice that such obligation has not been performed; or (iv) Affiliate
Page 14
<PAGE>
fails to pay any amount due and payable to Experian hereunder or fails to
perform in any material respect any obligation hereunder three (3) times during
the Term of the Agreement, whether or not such nonpayments or nonperformances
are cured within the applicable time periods. During the period for curing any
default, Experian shall have the right to suspend services provided hereunder;
provided, however, that if there exists a bona fide dispute over the amount due
Experian, the parties shall endeavor to resolve the dispute in good faith
pursuant to Section 23.7 and Experian shall not suspend services to Affiliate
because of such dispute during such dispute resolution process.
9.4 TERMINATION BY AFFILIATE. Experian shall be in default and
Affiliate shall have the right, in addition to any other right or remedy
available to it in law or equity, to terminate this Agreement automatically
effective upon delivery of written notice to Experian, in the event that
Experian materially fails to provide credit reporting service hereunder and
fails to cure such nonperformance within thirty (30) days after written notice
that such obligation has not been performed. In addition, Affiliate shall have
the right to terminate this Agreement if a price change results from an increase
in costs to Experian, and such price change in and of itself is the sole cause
for Affiliate to shift from profit to loss on its credit reporting operation,
and Affiliate provides Experian thirty (30) days prior written notice sent
within thirty (30) days after the effective date of such price increase. Nothing
herein shall prohibit or restrict Experian from changing or eliminating any of
the Services as long as Experian continues to provide some level of credit
reporting services and does not arbitrarily discriminate in the change or
elimination of Services in favor if its own direct credit reporting business.
9.5 CHANGE IN AFFILIATE OWNERSHIP. Affiliate shall give Experian sixty
(60) days prior written notice of any proposed sale, transfer or other
disposition of the assets, business or stock of Affiliate or change in
controlling interest in or management of Affiliate or its parent company, if
any, during the term of this Agreement. Experian shall give Affiliate written
notice, not less than thirty (30) days before the scheduled date of such sale,
transfer or other disposition or change of its election to do one of the
following: (i) approve such sale, transfer, disposition or change, in which
event this Agreement may be assigned to the acquiring party and shall remain in
full force and effect according to its terms; (ii) terminate this Agreement as
of the date of such sale, transfer, disposition or change; or (iii) propose
entering into new contractual arrangements with the proposed buyer, transferee
or new owner.
9.6 EFFECT OF TERMINATION. No termination of this Agreement shall
relieve either party of any liability for monetary sums due and payable to the
other, nor shall a termination preclude any other actions that might be taken by
either party at law or equity to enforce lawful obligations arising hereunder.
Nothing in this Agreement shall limit, or be deemed to limit or affect,
Experian's right after expiration or termination of this Agreement to (i)
collect for inclusion in the Experian System information on consumers having a
current address in an area which was formerly Affiliate's Leased Zip Code Area
or (ii) contact, market to or sell the Services or any other credit reporting
services to any entity, regardless of whether the names of such entities are
available to Experian through the Experian System and whether Affiliate has a
prior, then current or potential relationship with such entities. Affiliate
hereby assigns to Experian, effective upon expiration or termination of this
Agreement, all agreements between Affiliate and Affiliate Subscribers.
Page 15
<PAGE>
Upon expiration or termination, except as otherwise set forth herein,
this Agreement and all rights granted hereunder to Affiliate shall automatically
terminate and Affiliate shall (i) immediately and permanently cease to operate
its business as an affiliate credit bureau of Experian, and cease to represent
to the public or hold itself out as a present or former affiliate credit bureau
of Experian; (ii) immediately and permanently cease using the Experian System
and Experian Network; (iii) immediately and permanently refrain from using any
marks confusingly similar to the Marks; (iv) promptly pay all amounts due and
owing to Experian; and (v) immediately turn over to Experian all manuals,
brochures and other materials provided by Experian relating to the Services, the
Experian System and the Experian Network.
SECTION 10
BACK-UP DATA BASE
10.1 BACK-UP OF DATA BASE. Experian will maintain and store for
safekeeping computer-readable backup records with respect to the Affiliate
Leased Data Base as incorporated in the Experian System in a manner comparable
to that used by Experian in maintenance and safekeeping of Experian's own
back-up records. If there is a loss or destruction of the Affiliate Leased Data
Base, restoration thereof will be made to the extent possible from the back-up
records and Experian will use its best efforts to make such restoration as
promptly as possible.
SECTION 11
RIGHT TO THE DATA BASE
11.1 OWNERSHIP. The Affiliate Leased Data Base shall be the sole and
exclusive property of Experian. Upon any expiration or termination of this
Agreement, or during any suspension of service, Experian, as exclusive owner,
may keep and use the Affiliate Leased Data Base without contractual or other
restriction or limitation. Upon expiration or termination of this Agreement,
Affiliate shall immediately and permanently cease use of the Affiliate Leased
Data Base and provide to Experian any copies of the Affiliate Leased Data Base,
or part thereof.
11.2 PROPRIETARY RIGHTS. Nothing contained in this Agreement shall be
deemed to give Affiliate any copyright interest, proprietary rights or other
claim against or interest in the Experian Network, Experian System, the
Services, Direct Marketing Services, Experian Data Base, Affiliate Leased Data
Base or the information contained therein. Affiliate shall not acquire any
patent rights, copyright interest or other proprietary or ownership right, claim
or interest in the computer programs, forms, schedules, manuals or other
proprietary items utilized or provided by Experian to Affiliate or Affiliate's
Subscribers in connection with the credit reporting services rendered under this
Agreement. Experian shall use its best efforts to safeguard the Affiliate Leased
Data Base against unauthorized dissemination or use.
SECTION 12
USE AND SERVICE LIMITATIONS
12.1 CERTIFICATION. Experian and Affiliate each acknowledge that they
are subject to limitations with respect to the dissemination each is authorized
to make of credit information pursuant to certain state and federal laws,
including, but not limited to the federal Fair Credit Reporting Act, 15 U.S.C.
ss.1681 et. seq. Consistent with such obligations, Experian and
Page 16
<PAGE>
Affiliate hereby agree, and each certifies, warrants and represents to the
other, that credit reports of the other party will be requested, used and
disseminated only in strict conformity with all applicable federal and state
laws. In addition, Affiliate certifies, represents and warrants to Experian that
Affiliate shall comply with all federal, state and local laws, rules,
regulations and ordinances applicable to it and all Experian interpretations
thereof which Experian adopts in good faith and notifies Affiliate of in
writing.
12.2 NO REPRODUCTION OF REPORTS. Each party agrees not to duplicate or
reproduce any single credit report, obtained from the Experian System, for the
purpose of selling or distributing such a report or any information contained
therein to more than one user or customer.
SECTION 13
RECIPROCAL COVENANTS AND INDEMNIFICATIONS
13.1 NO ACCURACY GUARANTEE. Experian shall use its best efforts to
transmit to Affiliate reliable and accurate credit information from the Experian
Data Base. Experian does not warrant or guarantee that information reported from
the Experian System or in any Direct Marketing Services is accurate, complete or
up-to-date. Affiliate shall use its best efforts to provide or have provided to
Experian reliable and accurate credit information for insertion into the
Experian System, but Affiliate does not warrant or guarantee that such
information is accurate, complete or up-to-date. Neither party, nor their
directors, officers, employees or agents, shall be liable to the other for any
loss or injury in connection with the reporting or delivery of such credit
information.
13.2 CROSS-INDEMNIFICATION. Each party shall indemnify and hold the
other harmless from and against all costs and liabilities, including reasonable
attorneys' fees, which are incurred by reason of any improper use by or through
it or its Subscribers of information contained in the other's data base.
SECTION 14
LIMITATION OF LIABILITY
14.1 LOST OR DESTROYED DATA. If information furnished by Affiliate or
Affiliate Subscribers to Experian for storage in the Affiliate Leased Data Base
is lost or destroyed, the resulting liability of Experian shall be limited to
restoring promptly the information through back-up records, if reasonably
possible.
14.2 EXPERIAN SYSTEM. Experian shall have no obligation or liability
for or on account of any mechanical or other breakdown, malfunction or defect in
computer or other equipment or facilities or computer programs utilized by
Experian in its performance hereunder, except that Experian shall use reasonable
efforts in good faith to prevent such failure or to obtain its correction as
promptly as practical in light of the cause of the failure.
14.3 EXCLUSION OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN,
EXPERIAN MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS
Page 18
<PAGE>
FOR A PARTICULAR PURPOSE, IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES.
14.4 EXCLUSION OF CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANY OTHER
PROVISION IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES
(INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM THE LOSS OF BUSINESS,
DATA, PROFITS OR GOODWILL) INCURRED OR SUFFERED BY THAT PARTY BY REASON OF THE
OTHER PARTY'S PERFORMANCE OR NONPERFORMANCE UNDER THIS AGREEMENT, OR FOR ANY
OTHER REASON, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES.
14.5 LIMITATION OF LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL EITHER PARTY HAVE ANY OBLIGATION OR
LIABILITY TO THE OTHER FOR ANY CLAIM, INJURY OR DAMAGE RELATING TO, ARISING OUT
OF, OR RESULTING FROM THE FURNISHING OF INFORMATION TO THE OTHER PARTY
HEREUNDER.
SECTION 15
PUBLICITY
15.1 ADVERTISING. Neither party shall release any advertising or other
verbal or written public statement or publicity concerning this Agreement or
such party's performance hereunder without obtaining the prior written consent
of the other party, which consent shall not be unreasonably withheld.
15.2 RELEASE OF INFORMATION. The parties will hold the terms and
conditions of this Agreement in confidence and neither party will, without the
prior consent of the other party, disclose any of the terms and conditions of
this Agreement, to any other person except as may be necessary in order for a
party to enforce its rights hereunder or as may be required by law, regulation
or order of a court of competent jurisdiction; provided, however, that Experian
shall have the right to disclose the terms and conditions to any third party as
long as Experian does not specifically identify Affiliate as the party with whom
Experian has such agreement. Notwithstanding the foregoing, either party may
disclose the terms and conditions of this Agreement to (i)(A) its independent
legal counsel; (B) a financial institution with whom that party is seeking a
banking relationship, or (C) its outside independent accountants; or (ii) to a
person or entity in connection with a proposed sale, transfer or other
disposition of the assets, business, stock or other interest in that party, as
long as in each case such person or entity has entered into a confidentiality
agreement in a form acceptable to Experian.
Page 18
<PAGE>
SECTION 16
INSURANCE
16.1 COVERAGE REQUIREMENTS. Each party shall, during the term of this
Agreement, maintain in full force and effect, at its expense, a standard
comprehensive general liability insurance policy, with customary deductions, or
self-insurance, providing coverage of at least three hundred thousand/five
hundred thousand dollars ($300,000/$500,000) for bodily injury, two hundred
thousand dollars ($200,000) for property damage and one million dollars
($1,000,000) for other liability in the nature of defamation or violations of
credit reporting laws or invasion of privacy. Upon request, each party shall
furnish the other with certificates of such insurance and evidence of renewals.
The purchase of such insurance shall not be deemed to constitute satisfaction of
the indemnity obligations contained in Section 13.
SECTION 17
TRADEMARK AND COPYRIGHT LICENSE
17.1 OWNERSHIP. Experian is the owner of all right, title and interest
in and to (i) various trademarks and service marks ("MARKS") as are obtained and
owned by Experian and used in conjunction with its offer or sale of goods and
services pursuant to this Agreement; and (ii) copyrights on the forms or other
written materials associated with such goods and services ("COPYRIGHTS"). It is
expressly agreed and acknowledged by Affiliate that all right, title and
interest in and to the "Experian" name and mark, and related goodwill throughout
the world and all other Marks and Copyrights shall be the sole and exclusive
property of Experian. No license or right to use the Experian name or mark, or
any other Mark or Copyright is granted or conferred to Affiliate by this
Agreement. Notwithstanding the foregoing, Affiliate may indicate in its
advertising that it is a credit bureau "serviced by" Experian.
17.2 CONTROL OF SERVICES BEARING MARKS. Experian has the right to
control the nature and quality of all goods and services on which the Marks may
be used by prescribing and setting reasonable standards, specifications and
procedures for the production of goods and services bearing the Marks and the
preparation of advertising and promotional material in connection therewith.
Experian also reserves the right, at any reasonable time, with or without
notice, to enter and inspect any premises on which the goods and services, or
any related items, bearing the Marks are produced to verify adherence to such
standards, specifications or procedures.
17.3 AFFILIATE NAME. Affiliate shall not use the "Experian" name or
mark or any of the other Marks in its corporate name in connection with its
offer or sale of goods or services, or for any other purpose.
17.4 NOTICE OF INFRINGEMENT. If Affiliate becomes aware of any
infringement by others of any Marks or Copyrights, it shall promptly notify
Experian thereof and assist Experian in enforcing the rights of Experian in such
Marks and Copyrights.
Page 19
<PAGE>
SECTION 18
NATIONAL ACCOUNTS*
SECTION 19
CONFIDENTIALITY
19.1 CONFIDENTIAL TREATMENT. Affiliate acknowledges that it may receive
other proprietary and confidential information of Experian including but not
limited to technical, developmental, operating, computer system, software,
performance, cost, know-how and process information and Experian policy.
Affiliate warrants to Experian that (a) except as otherwise permitted by this
Agreement, it will maintain the information obtained through Experian in strict
confidence and will not disclose such information other than to its employees
who have a need to know and (b) will use the information only for purposes of
this Agreement. Upon termination of this Agreement or at the request of
Experian, Affiliate will promptly return to Experian all Experian confidential
information and any copies thereof provided to it. Affiliate warrants that it
will require by written contract that customers receiving such information from
Affiliate comply with the same obligations of nondisclosure.
SECTION 20
EXCUSABLE DELAYS
20.1 EXCUSABLE DELAYS. Neither party shall be liable for any delay or
failure in its performance of any of the acts required by this Agreement when
such delay or failure arises beyond the reasonable control of such party. Such
causes may include, without limitation, acts of God or public enemies, labor
disputes, material or component shortages, computer downtime, software defects,
supplier failures, embargoes, rationing, acts of local, state or national
governments or public agencies, utility or communication failures or delays,
fire, flood, epidemics, riots and strikes. The time for performance of any act
delayed by such causes shall be postponed for a period equal to the delay;
provided, however, that the party so affected shall give prompt notice to the
other party of such delay. The party so affected, however, shall use its best
effort to avoid or remove such causes of nonperformance and to complete
performance of the act delayed whenever such causes are removed.
Page 20
* The contents of Section 18 have been omitted pursuant to a request for
confidential treatment submitted to the Securities and Exchange Commission.
<PAGE>
SECTION 21
ASSIGNMENT
21.1 ASSIGNMENT BY AFFILIATE. Affiliate will not assign this Agreement
(including without limitation the assignment of any rights or obligations to a
subcontract bureau operating in Affiliate Leased Zip Code Area) without the
prior written consent of Experian, which consent shall not be unreasonably
withheld. Affiliate will not, directly or indirectly, provide or agree to
provide to any Other Experian Affiliate any of the services which are provided
by Experian hereunder. Nothing in this Section 21.1 shall be deemed to limit
Experian's rights pursuant to Section 9.5 with respect to the matters addressed
therein.
21.2 ASSIGNMENT BY EXPERIAN. Experian will not assign this Agreement or
the performance of services called for hereby without the prior written consent
of Affiliate, which consent shall not be unreasonably withheld; provided,
however, that upon written notice, Experian may assign this Agreement without
consent to a company which is the parent of Experian, to another subsidiary of
such parent in which the parent owns at least eighty percent (80%) of the voting
capital stock, or to a subsidiary of Experian in which Experian owns at least
eighty percent (80%) of the voting capital stock, or in connection with any
merger (including but not limited to any reincorporation merger), consolidation,
reorganization, stock exchange, sale of stock, sale of all or substantially all
of the assets of the business to which this Agreement relates or any similar or
related transaction in which Experian is the surviving entity or, if not the
surviving entity, the surviving entity continues to conduct the business to
which this Agreement relates.
SECTION 22
RIGHT TO AUDIT
22.1 AFFILIATE AUDITS. Affiliate will have the right to audit, at its
expense (including any cost to Experian associated with any special processing)
and upon reasonable written notice, at a mutually agreeable time and place,
through an independent certified public accountant acceptable to Experian,
Experian records to determine whether the fees and charges to Affiliate are in
accordance herewith, subject to the provisions of Section 6.2 hereof.
22.2 EXPERIAN AUDITS. Experian shall have the right to audit, at its
expense and upon reasonable written notice, Affiliate's books, records and
operations to determine and confirm Affiliate's compliance with the terms of
this Agreement. Such audit shall take place at Affiliate's offices, or at such
other locations as may be agreed to by the parties.
22.3 PHYSICAL INSPECTIONS. Each party will have the right, upon written
notice, to visit the other party's premises and make reasonable periodic checks
of the facilities and equipment which are the subject matter of this Agreement.
Page 21
<PAGE>
SECTION 23
MISCELLANEOUS
23.1 INDEPENDENT STATUS OF PARTIES. Nothing contained in this
Agreement, nor in the relationship created thereby, shall be interpreted to
evidence a joint venture, partnership or (except to the limited extent provided
in Section 3.8 hereof) principal/agent relationship as between Experian and
Affiliate. Neither party shall have any right or authority to act for, or to
assume, create or incur any obligation, liability or responsibility of any kind,
whether express or implied, against, in the name of, or on behalf of, the other
party. Except as set forth herein, Affiliate shall be fully independent in its
business operations. Affiliate shall be and remain fully responsible for such
matters as Affiliate-Affiliate Subscriber relationships and interfaces,
marketing, product pricing, maintenance of office facilities and employment
policies.
23.2 WAIVER. The waiver by one party of any covenant, condition,
obligation, representation, warranty or promise in this Agreement shall not
invalidate this Agreement or be deemed a waiver by such party of any other
covenant, condition, obligation, representation, warranty or promise. A failure
or delay of either party to enforce any of the provisions of this Agreement or
to require performance of any provisions shall in no way be construed as a
waiver of such provisions, except as specifically provided in Section 6.2
hereof. The rights and remedies provided each of the parties herein shall be
cumulative and in addition to any other rights and remedies provided by law or
otherwise.
23.3 NOTICES. All notices and other communications required or
permitted to be given or delivered under this Agreement shall be in writing and
shall be effective when delivered personally, or by confirmed facsimile,
electronic mail, overnight express mail or, if mailed, five (5) days after
mailing registered or certified mail, return receipt requested, postage prepaid,
addressed to the other party at their respective addresses set forth below,
unless by notice a different address shall have been designated for giving
notice hereunder. Any other notice shall be deemed given when received.
If to Experian, then to: Experian Information Solutions, Inc.
505 City Parkway West
Orange, California 92868
Attention: Affiliate Relations
Copy to: Experian Information Solutions, Inc.
505 City Parkway West
Orange, California 92868
Attention: General Counsel
If to Affiliate, then to: Factual Data
5200 Hahns Peak Drive
Loveland, Colorado 80538
Attention: President
Page 22
<PAGE>
23.4 REFORMATION AND SEVERABILITY. If any provision of this Agreement
is declared invalid by any arbitrator or court of competent jurisdiction, then
such provision shall be automatically adjusted to the minimum extent necessary
to conform to the requirements for validity as declared at such time and, as so
adjusted, shall be deemed a provision of this Agreement as though originally
included herein. In the event that the provision invalidated is of such a nature
that it cannot be so adjusted without materially and substantially altering the
rights and duties hereunder and fundamentally depriving one party of the benefit
of the bargain (taken as a whole) contemplated by this Agreement, then the
parties will seek to reform this Agreement through the process outlined in
Section 23.7 so as to restore as nearly as possible the parties' respective
rights, duties and bargain. If for any reason, the process outlined in Section
23.7 is not completed within the timeframes set forth therein, either party may
terminate this Agreement on thirty (30) days prior written notice to the other.
Unless this Agreement is terminated as provided in the prior sentence, the
remaining provisions of this Agreement shall remain in effect.
23.5 SURVIVAL. The provisions of Sections 6, 9.6, 11, 12.1, 13, 14, 15,
17, 19, 22, 23.2, 23.3, 23.4, 23.5, 23.6, 23.7, 23.8 and 23.10 will survive the
expiration or termination of this Agreement.
23.6 PARTIES IN INTEREST. Nothing in this Agreement, whether express or
implied, shall (i) confer upon any person, other than the parties hereto and
their respective heirs, representatives, agents, successors and permitted
assigns, any benefits, rights or remedies; (ii) relieve or discharge the
liability of any other party; or (iii) give any entity any right of subrogation
against or action over either party. Nothing in this Agreement is intended to
grant to either party any rights over and against the other in respect of any
lawsuit or other proceeding brought under any state or federal credit reporting
statute, libel, slander or other common law theories, except as explicitly set
forth herein. Neither party will cross-complain against the other in any lawsuit
brought by a third party without first giving the other party hereto thirty (30)
days written notice.
23.7 DISPUTE RESOLUTION. If the parties should have any material
dispute arising out of or relating to this Agreement or the parties respective
rights and duties hereunder, then the parties shall resolve such dispute in the
following manner:
(A) NOTICE. Either party may at any time deliver to the other a
written dispute notice setting forth a brief description of the issue for which
such notice initiates the dispute resolution mechanism contemplated by this
Section.
(B) REPRESENTATIVES MEET. During the sixty (60) day period
following the delivery of the notice described in subsection (a) above,
appropriate representatives of both parties will meet and seek to resolve the
disputed issue through negotiation.
(C) ARBITRATION. If the representatives of the parties are unable
to resolve the disputed issue through negotiation, then within the thirty (30)
days after the period described in subsection (b) above, at the written request
of either party, such dispute shall be referred to an arbitration in which each
party shall participate in accordance with the Commercial Arbitration Rules of
the American Arbitration Association except (i) there shall be one (1)
Page 23
<PAGE>
arbitrator who is an attorney knowledgeable about the consumer credit reporting
industry; (ii) all discovery shall be concluded within ninety (90) days of
serving of the notice of arbitration; and (iii) the arbitration proceedings
shall be held within one hundred eighty (180) days after serving of the notice
of arbitration and payment of the expenses of the arbitration, including but not
limited to the parties' legal fees and the arbitrator's fee, shall be assessed
by the arbitrator based on the extent to which each party prevails. Arbitration
proceedings shall be conducted in Orange County, California if the dispute was
referred to arbitration at the written request of Affiliate, and in the county
in which Affiliate's place of business is located (as identified in the first
paragraph of this Agreement) if the dispute was referred to arbitration at the
written request of Experian. The award of the arbitrator shall be binding, and
judgment upon the award may be entered in any court having jurisdiction.
(D) EXCEPTIONS. Notwithstanding the foregoing, Experian shall be
entitled to pursue an action at law or in equity to prevent or terminate any
breach of Section 17 (relating to Experian's Marks and Copyrights) and to seek
injunctive relief or take such other action as it deems appropriate in the event
that Affiliate breaches Section 12 (relating to Affiliate's failure to comply
with applicable laws, rules, regulations, ordinances and Experian
interpretations thereof) or Sections 15.2 or 19 (relating to publicity and
confidentiality).
23.8 SUCCESSORS AND ASSIGNS. This Agreement shall be binding on the
parties and to their respective legal successors and permitted assigns.
23.9 INCORPORATION BY REFERENCE. The exhibits and schedules to this
Agreement and Experian's written policies from time to time constitute an
integral part of this Agreement and are hereby incorporated into this Agreement
by this reference. In the event of any conflict or inconsistency between the
language of this Agreement and the language of any exhibit or schedule to this
Agreement or any such written policy, the language of this Agreement shall
control.
23.10 APPLICABLE LAW. This Agreement is deemed to be made and executed
in the State of California and the laws and decisions of California (without
regard to the choice of laws principles thereof) shall control the construction,
interpretation, validity and enforcement of this Agreement, except to the extent
that federal law or regulations may control.
23.11 CONTRACT IN ENTIRETY. This Agreement supersedes all prior
agreements and all contemporaneous agreements not required or contemplated
hereby, whether oral or written, and all representations, warranties,
negotiations, undertakings and understandings of and between the parties with
respect to the same subject and is the entire agreement of the parties with
respect to the subject matter hereof. This Agreement may not be modified,
supplemented or amended except by a writing signed by an authorized
representative of each of the parties.
23.12 HEADINGS. The headings and captions in this Agreement are
inserted only for purposes of reference and convenience and in no way define,
limit, extend or otherwise affect the meaning or interpretation of this
Agreement or the intent of any provisions hereof.
Page 24
<PAGE>
23.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, simultaneously or separately. Each counterpart shall be deemed to
be an original for all purposes and all counterparts shall constitute one and
the same instrument.
[Signatures follow]
Page 25
<PAGE>
IN WITNESS WHEREOF, the parties hereto, each acting with proper
authority, have duly executed this Agreement as of the Effective Date first set
forth above.
Factual Data Corp.
Experian Inc. _____________________________
By and Through Its Name of Affiliate
Consumer Information Services Division
By: /s/ Terry L. McComas By: /s/ J. H. Donnan
--------------------------- ----------------------------------
Signature Signature
Name: TERRY MCCOMAS Name: J. H. DONNAN
------------------------- ---------------------------------
Type or Print Type or Print
Title: SVP-SSC Title: President
------------------------ --------------------------------
Type or Print Type or Print
Page 26
<PAGE>
EXHIBIT A
SERVICES
INQUIRY RESPONSES (BASE CREDIT PROFILE REPORT)
ANCILLARY SERVICES
FACS Hit
FACS Inquiry
Fraud Shield
Direct Check
Risk Models
Profile Summary
FICO Score
FICO Insurance Score
Experian Score
Collect Score
Custom Risk
Recovery Score
Credit Trends
Bundled Products
Profile Analysis
Expert Analysis
Risk Analysis
Premier Analysis
Demographics
Drivers License
Telephone
Geo Code
Homeowner
New Consumer Identifier
ADDITIONAL SERVICES
Social Search
Employment Insight
Collection Report
Connect Check
Connect Check Plus
Skip Locator
Address Update
ID Profile
Prescreen
Quest
Easy Prescreen
Signal
Extract
Credit Scoring/Modeling
Historical Validation
DIRECT MARKETING
List Sales/ List Hygiene
Exhibit A -1
<PAGE>
Computer Services
Exhibit A - 2
<PAGE>
EXHIBIT B
ITEM 1 AFFILIATE SYSTEM FEES *
----------------------------
ITEM 2 ANCILLARY SERVICE FEES (5.2.2) *
-------------------------------------
ITEM 3 ADDITIONAL SERVICE FEES (3.7) *
------------------------------------
Exhibit B - 1
* The line item prices on this Exhibit B have been omitted pursuant to a
request for confidential treatment submitted to the Securities and Exchange
Commission.
<PAGE>
ITEM 4 CROSS ACCESS FEES(5.7) *
ITEM 5 CROSS MARKETING FEES (5.8) *
ITEM 6 AFFILIATE ROYALTIES (5.12/18.2) *
ITEM 7 EXPERIAN CROSS ACCESS (8.1) *
ITEM 8 BASE INQUIRY VOLUME (3.1.3/3.1.4) *
* The line item prices on this Exhibit B have been omitted pursuant to a
request for confidential treatment submitted to the Securities and Exchange
Commission.
<PAGE>
EXHIBIT C
BTXT
ZIP CODE COUNTY ZIP CODE COUNTY
=================================================================================================
78336 Aransas 78522
78358 78523
78381 78526
78382 78535 Cameron
78102 Bee 78550
78104 78551
78125 78552
78142 78553
78145 78559
78146 78566
78162 78567
78389 78568
78391 78575
77422 Brazoria 78578
77430 78583
77431 78586
77463 78592
77480 78593
77486 78596
77511 78597
77512 78341 Duval
77515 78349
77516 78357
77531 78376
77534 78384
77541 77510 Galveston
77542 77511
77566 77517
77577 77550
77578 77551
77583 77552
78353 Brooks 77553
78355 77554
77972 Calhoun 77555
77978 77563
77979 77565
77982 77568
77983 77590
Exhibit C - 1
<PAGE>
BTXT
ZIP CODE COUNTY ZIP CODE COUNTY
=================================================================================================
78520 Cameron 77591
78521 77592
77905 Goliad 77991
77960 78361 Jim Hogg
77963 78332 Jim Wells
77993 78333
78107 78342
78501 Hidalgo 78372
78502 78375
78503 Hidalgo 78383
78504 78384
78505 78338 Kenedy
78516 78385
78537 78363 Kleberg
78538 78364
78539 78379
78540 77404 Matagorda
78543 77414
78549 77415
78550 77419
78557 77428
78558 77440
78559 77456
78560 77457
78562 77458
78563 77465
78565 77468
78570 77482
78572 77483
78573 78330 Nueces
78576 78336
78577 78339
78579 78343
78584 78347
78589 78351
78595 78373
78596 78380
78599 78401
77957 Jackson 78402
77961 78403
77962 78404
Exhibit C - 2
<PAGE>
BTXT
ZIP CODE COUNTY ZIP CODE COUNTY
=================================================================================================
77969 78405
77970
77971 78335 San Patricio
78408 78336
78409 78352
78410 78359
78411 78362
78412 78368
78413 78370
78414 78406
78415 78407
78416 78374
78417 78387
78418 78390
78419 Nueces 78536 Starr
78426 78545
78427 78547
78460 78548
78463 78582
78465 78584
78466 78585
78467 78588
78468 78591
78469 77901 Victoria
78470 77902
78471 77903
78472 77904
78473 77905
78475 77951
78476 77963
78477 77968
78478 77973
78480 77976
77950 Refugio 77977
77990 77988
78340 78516 Willacy
78377 78561
78393 78569
78360 78580
78641 78590
78474 78594
Exhibit C - 3
<PAGE>
BTXT
ZIP CODE COUNTY ZIP CODE COUNTY
=================================================================================================
78598
Exhibit C - 4
<PAGE>
EXHIBIT D*
Exhibit D - 1
* The contents of Exhibit D have been omitted pursuant to a request for
confidential treatment submitted to the Securities and Exchange Commission.
<PAGE>
ANNEX A
IRSG TERMS AND CONDITIONS
WHEREAS, certain non-permissible purpose, identification-only products
available to Affiliate through Experian constitute individual reference products
under the IRSG Principles ("REFERENCE PRODUCTS"); and
WHEREAS, it is in the best interests of both Affiliate and Experian to
implement the IRSG Principles and Affiliate and Experian mutually desire to
amend the Agreement in order to implement the IRSG Principles as set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and subject to the
terms and conditions set forth herein, the parties hereto mutually agree as
follows:
1. Affiliate shall comply with and implement all applicable IRSG
Principles, in the manner set forth herein.
2. Affiliate acknowledges receipt of Experian's description of its
information collection policies and procedures. If Affiliate utilizes
information from other sources, Affiliate shall acquire such information from
sources known as reputable in the government and private sectors and shall
employ reasonable measures to understand each information source's data
collection practices and policies before accepting information from that source.
3. When contacted by an individual or its subscribers concerning an
alleged inaccuracy about an individual, or a request for name removal, Affiliate
shall disclose to the individual or subscriber, if the source is Experian, that
Experian is the source of the information and where the request may be directed.
4. Affiliate shall provide information to its subscribers strictly in
compliance with Principle V of the IRSG Principles. Without limitation of the
foregoing, Affiliate shall conduct a reasonable investigation of its subscribers
and potential subscribers and such subscribers' intended uses of the Reference
Products. Affiliate's investigation will include at a minimum all of the actions
listed on the "IRSG End User Qualification Requirements" form, a copy of which
is attached hereto, before giving a subscriber access to the Reference Products.
Affiliate shall also require subscribers desiring access to any Reference
Products designated by Experian as coming under Section V.A. or V.B. of the IRSG
Principles to state their appropriate uses of the Reference Products, and shall
provide the Reference Products only to those subscribers whose uses meet the
requirements set forth in the "Appropriate Use Parameters" form, a copy of which
is attached hereto. Experian shall have the right to revise any end user
qualification requirements and appropriate use parameters, and Affiliate shall
comply with such revised policies on thirty (30) days written notice of such
change. Affiliate agrees to provide to Experian upon request all materials and
information relating to its investigations of its subscribers and such
subscriber's proposed uses of the Reference Products. Affiliate shall present
any proposed use of Reference Products or type of subscriber not included in the
Appropriate Use Parameters form to Experian
Annex A - 1
<PAGE>
for approval of such subscriber or use prior to granting access to the Reference
Products. Experian may withhold such approval in its sole discretion.
Affiliate shall not make any Reference Product available directly or
indirectly for general distribution as contemplated under Item V.C. of the IRSG
Principles.
Affiliate shall be responsible for removing or blocking any data
contained in Reference Product to which it may have access, the dissemination of
which to a given subscriber is prohibited in any way by this Addendum or
Principle V of the IRSG Principles.
5. Affiliate will enter into written agreements executed by each of
Affiliate's subscribers requiring compliance by such subscribers with the
applicable terms and conditions of Principle V of the IRSG Principles and this
Addendum. Affiliate will monitor its subscribers on an ongoing basis to assure
the continued compliance with the applicable requirements of this Addendum and
Principle V of the IRSG Principles and will discontinue the Services to any
subscriber who is not in compliance (after a reasonable opportunity to cure such
noncompliance for a period of not more than thirty (30) days). Upon request,
Affiliate shall provide to Experian a description of all measures and mechanisms
implemented by Affiliate to assure that qualified subscribers use the Reference
Products in accordance with this Addendum and applicable requirements of
Principle V of the IRSG Principles and shall remedy any and all subscriber
abuses of information using such measures and mechanisms. Affiliate will
implement any measures or mechanisms reasonably requested by Experian from time
to time in such regard.
Affiliate will sell Reference Products for resale only to entities which
have adopted or agreed to comply with the IRSG Principles and on terms and
conditions consistent with this Addendum and the IRSG Principles.
6. Affiliate shall maintain a record of the identity of its
subscribers, the types of uses, and the terms and conditions agreed to by its
subscribers for three (3) years after the termination of each of its
subscribers' relationship with the Affiliate.
7. Affiliate shall maintain complete and accurate books and records
relating to its and its subscribers' compliance with this Addendum and Principle
V of the IRSG Principles. Experian, or any representative it designates, will
have the right to examine and copy or make extracts from all such books and
records and any source documents used in preparation thereof, at any time during
normal business hours, provided Experian gives Affiliate written notice at least
three (3) business days prior to any such examination.
8. In the event of a material breach of any term of this Addendum or
Principle V of the IRSG Principles, Affiliate shall have thirty (30) days
following written notice from Experian to cure breach. If such breach is not
cured within thirty (30) days, unless written notice requesting an extension has
been provided to Experian and Experian has approved such extension, Experian may
terminate Affiliate's access to Reference Products.
In addition, Experian may terminate access to Reference Products on
fifteen (15) days written notice to Affiliate in the event that Affiliate's use
of any Reference Product is (a) the
Annex A - 2
<PAGE>
subject of material adverse consumer reaction related to consumer privacy
issues, or (b) the subject of material litigation by any governmental agency.
9. Affiliate shall maintain facilities and systems to protect
information from unauthorized access and access in excess of authorized levels
in a manner reasonably acceptable to Experian. Such methods shall include (i)
physical and electronic security, (ii) use of appropriate confidentiality
agreements with, and supervision of, employees and contractors, and (iii) system
review at appropriate intervals to assure that employees are complying with
policies ("Security Measures"). Affiliate will, upon reasonable request, from
time to time provide to Experian written description of its implementation of
its Security Measures as they apply to the use of the Reference Products and
will undertake any action reasonably requested by Experian necessary to improve
its Security Measures.
10. Affiliate shall have an information practices policy statement that
describes what information it has, the source of such information, types of
entities to whom it may be disclosed, types of uses to which it is put,
procedures for the individual to opt-out, contact information, and how security
of its information is handled, and shall make its policy statement available
upon request. Consumers shall be notified about these practices in various ways
such as: Web sites, advertisements, or company or industry-initiated educational
efforts.
11. Affiliate shall, upon request, inform an individual about the
nature of Public Record and Publicly Available Information (each as defined in
the IRSG Principles) that it makes available in its products and services and
the sources of such information.
12. Affiliate shall provide access to the services through which any
Reference Product is disseminated to Experian at no charge for the purpose of
verifying the Reference Product provided and Affiliate's compliance with this
Addendum and Principle V of the IRSG Principles. Affiliate shall provide all
software and other materials necessary for such access at no charge.
13. All terms and conditions of the Agreement not specifically
addressed in this Addendum shall remain unchanged and in full force and effect.
The terms of this Addendum shall prevail in the event of any inconsistency
between this Addendum and the Agreement relating to Reference Products. All
terms not defined herein beginning with an initial capital letter shall have the
meaning set forth in the Agreement. This Addendum and the Agreement set forth
the entire understanding of the parties with respect to the subject matter
hereof and supersede to the extent indicated all prior agreements, letters,
covenants, arrangements, communications, representations and warranties, whether
oral or written, by any employee, officer or representative of either party.
Annex A - 3