Credit Report Transmission and Access Marketing Agreement - Fanne Mae and Factual Data Corp.
CREDIT REPORT TRANSMISSION AND ACCESS MARKETING AGREEMENT
THIS CREDIT REPORT TRANSMISSION AND ACCESS MARKETING AGREEMENT ("Agreement") is
entered into this 11 day of November, 1998 by and between Fannie Mae, 3900
Wisconsin Avenue, Washington, D.C. 20016 ("Fannie Mae"), and Factual Data Corp.,
a credit reporting agency [[and] Software Vendor] ("Credit Vendor"). All defined
terms shall have the meanings ascribed to them in the Agreement.
WITNESSETH:
WHEREAS, Fannie Mae owns and markets certain database/data-processing
software and network-related applications accessible to Licensees via the
Systems;
WHEREAS, Credit Vendor is in the business of providing and/or facilitating
the provision of Credit Reports to various participants in the mortgage lending
industry, and wishes to provide the same to Licensees and LOS End Users via the
Systems; and
WHEREAS, Credit Vendor desires to develop the Interface to facilitate its
provision of such Credit Reports, and further wishes to market access to the
Systems via the Interface to various Technical Affiliates,
NOW THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Fannie Mae and Credit
Vendor, intending to be legally bound, agree as follows:
1. DEFINITIONS.
1.1 "Acceptance Document" shall mean a Document which contains an
acceptance of (i) the terms contained in a Request Document, or (ii)
any new terms contained in a Rejection Document.
1.2 "Circuit" shall mean the third-party point-to-point telecommunications
leased-line circuit through which Credit Vendor may obtain direct,
dedicated access to the Systems by means of the Equipment.
1.3 "Credit Report" shall mean any consumer credit report electronically
transmitted by Credit Vendor and/or a Technical Affiliate to a
Licensee or LOS End User via the Systems upon such Licensee's (or LOS
End User's) request (including reissued consumer credit reports), and
references to a Credit Report shall be construed to include any
creditworthiness scores transmitted by Credit Vendor or Technical
Affiliate, as the case may be.
1.4 "Document" shall mean a particular electronic transmission of data
and/or information, including a Credit Report, via the Systems in
Fannie Mae-approved transmission formats.
1.5 "Documentation" shall mean all documentation provided to Credit Vendor
by Fannie Mae and/or its designee relating to the installation,
configuration, operation and maintenance of the Equipment or the
Circuit.
<PAGE>
1.6 "Equipment" shall mean any and all hardware set forth in Exhibit C and
any Documentation describing it.
1.7 "Escalation Procedures" shall mean those procedures set forth in
Exhibit B, which Credit Vendor shall follow within the time frames set
forth therein in handling any inquiries relating to the Interface or
Credit Report transmissions, or resolving any Incidents.
1.8 "FCRA" shall mean the federal Fair Credit Reporting Act, codified at
15 U.S.C.ss.ss.1681 et seq., and the Federal Trade Commission's
Official Staff Commentary to the Fair Credit Reporting Act.
1.9 "Incident" shall mean (i) any irregularity, error, problem or defect
resulting from an incorrect functioning of the Interface if such
irregularity, error, problem or defect renders the Interface incapable
of meeting the specifications thereof or causes incorrect functions to
occur, including, without limitation, any garbled or other defective
transmission of a Document from the Interface to the Systems, or (ii)
an incorrect or incomplete identification, statement or diagram in any
documentation accompanying the Interface that causes such
documentation to be inaccurate or incomplete in any material respect.
1.10 "Interface" shall mean the current release of the program code
developed, maintained and supported by Credit Vendor to facilitate the
linkage of its own internal consumer credit report retrieval and merge
systems (and certain of its Technical Affiliates' systems) with, and
the transmission of Documents to and through, the Systems, and
references to the Interface shall be construed to include those
components and functionalities of Credit Vendor's systems and networks
as are necessary to facilitate such linkage and transmission.
1.11 "Licensed Software" shall mean the current release (in executable form
only) of Fannie Mae's software product known as Desktop
Underwriter(R), Desktop Originator(R) and Desktop Home Counselor(R),
as applicable, including any related diagnostic software, consisting
of machine-readable software designed to support and facilitate (i)
electronic processing of mortgage loan applications, and (ii) the
communication of data and Credit Reports between Credit Vendor and/or
its Technical Affiliates, Licensees and LOS End Users. The term
"Licensed Software" shall also include any modifications, updates,
enhancements and releases to such software which are provided to
Credit Vendor (in executable form only) by or on behalf of Fannie Mae
pursuant to this Agreement.
1.12 "Licensee" shall mean any individual or entity duly licensed by Fannie
Mae to use the Licensed Software and/or MortgageLinks(TM), and that
also maintains a direct, independent contractual relationship with
Credit Vendor and/or any Technical Affiliate from which such
individual or entity obtains a Credit Report.
1.13 "LOS End User" shall mean any individual or entity that is not a
Licensee, but nonetheless maintains a direct, independent contractual
relationship with one or more LOS Vendors, Credit Vendor and/or any
Technical Affiliate from which such individual or entity obtains a
Credit Report.
1.14 "Losses" shall mean any liabilities, claims, actions, suits,
proceedings, judgments, losses, damages, deficiencies, costs and
expenses. However, the term "Losses" shall
-2-
<PAGE>
not include legal and other expenses incurred in defending an
indemnifiable claim under Sections 4.2, 8.8, 14.1 or 14.2 for which
the financial responsibilities of the parties are specified in Section
15.
1.15 "LOS Vendor" shall mean a third-party loan origination software vendor
integrated with one or more of the Systems (by means of Fannie Mae's
service-based architecture or otherwise), and through the software of
which a Credit Report is requested and received by a Licensee or LOS
End User.
1.16 "Marks" shall mean a party's registered or unregistered trade names,
trademarks, logos and service marks. Without limiting the generality
of the foregoing, Credit Vendor acknowledges that Fannie Mae's Marks
include "Fannie Mae(R)," "MORNET(R)," "MORNETPlus(R),"
"MortgageLinks(TM)," "Desktop Underwriter(R)," "Desktop Originator(R)"
and "Desktop Home Counselor(R)."
1.17 "MORNETPlus(R) Network" shall mean the value-added network operated by
Fannie Mae for the mortgage industry, and references to the
MORNETPlus(R) Network shall be construed to mean references to the
Specifications and the Licensed Software.
1.18 "MortgageLinks(TM)" shall mean the current release, in each instance,
of each application developed by Fannie Mae and accessible by various
means, including through the MORNETPlus(R) Network, that facilitates
the transmission and, where applicable, translation of products and
services, including Credit Reports, between and among Fannie Mae,
Credit Vendor (and/or its Technical Affiliates), Licensees and LOS End
Users in a flat file, ANSI-approved, X12 EDI format and/or other
Fannie Mae-approved transmission formats.
1.19 "Proprietary Information" of a party shall mean (i) information
disclosed by such party relating to product development strategy and
activity, corporate assessments and strategic plans, financial and
statistical information, accounting information, software, systems,
processes, formulae, inventions, discoveries, policies, guidelines,
procedures, practices, disputes or litigation, including, without
limitation, any network address provided by Fannie Mae and/or its
designee to Credit Vendor to facilitate Credit Vendor's access to the
Systems, (ii) other confidential, proprietary or trade secret
information disclosed by such party that is identified in writing as
such at the time of its disclosure, (iii) all other confidential,
proprietary or trade secret information disclosed by such party, which
a reasonable person employed in the mortgage industry would recognize
as such, (iv) information relating to such party's employees,
contractors or customers which, if released, would cause an unlawful
or actionable invasion of privacy, and (v) any compilation or summary
of information or data that is itself Proprietary Information. For
purposes of this Agreement, information shall be deemed to be
disclosed by a party if such information is disclosed by any of its
affiliates, partners, officers, employees, directors, agents,
contractors, representatives, successors or assigns.
1.20 "Rejection Document" shall mean a Document which contains a rejection
of the terms offered in a Request Document and may contain an offer of
different terms.
1.21 "Request Document" shall mean a Document which contains a Licensee's
or LOS End User's request for a Credit Report.
-3-
<PAGE>
1.22 "Service Charges" shall mean those fees set forth in Exhibit A that
are assessed by Fannie Mae against Credit Vendor, the purpose of which
is to assist in the recoupment of costs and expenses incurred by
Fannie Mae in connection with its application development and support,
and, if applicable, provision and maintenance of the Equipment, the
Circuit and related interfaces to facilitate the transmission of
Credit Reports.
1.23 "Signature" shall mean an electronic identification consisting of
symbol(s) or code(s) specified from time to time by Fannie Mae which
shall be affixed to or contained in each Document, and may be included
in an electronic mail envelope in which such Document is transmitted.
1.24 "Site" shall mean each location designated by Credit Vendor to which
the Equipment shall be delivered by Fannie Mae and/or its designee.
1.25 "Specifications" shall mean those technical specifications and
protocols relating to the Systems and Credit Report data formats that
are defined and made available to Credit Vendor by Fannie Mae such
that, when properly utilized by Credit Vendor, should facilitate
Credit Vendor's development and maintenance of the Interface and the
transmission of Credit Reports in a format and manner acceptable to
Fannie Mae, and shall include, without limitation, Fannie Mae's
"Credit Agency Systems Integration Guide," as amended from time to
time.
1.26 "Stipulated Loss Value" shall mean the value of each item of
Equipment, stipulated and agreed to by Credit Vendor and Fannie Mae
and set forth in Exhibit C, which Credit Vendor shall pay to Fannie
Mae in the event of loss or damage to the particular item of
Equipment, as set forth in Section 3.9 of this Agreement.
1.27 "Systems" shall mean MortgageLinks(TM)and the MORNETPlus(R)Network.
1.28 "Technical Affiliate" shall mean any credit reporting agency or other
credit reporting entity to which Credit Vendor, in its sole
discretion, provides access to the Systems; provided, however, that
the term "Technical Affiliate" shall not be construed as implying any
particular form of legal relationship between Credit Vendor and such
Technical Affiliate.
1.29 "Third-Party Licensor" shall mean any third party which licenses or
otherwise conveys the right to use and/or distribute the Equipment,
the Circuit, and/or any component of the Systems, owned or otherwise
furnished by such third party, to Fannie Mae, including, but not
limited to, any third party that licenses or otherwise conveys to
Fannie Mae the right to provide remote access to its hardware,
software, data, services or other materials.
2. OWNERSHIP.
2.1 Systems, Equipment, Circuit and Interface. Credit Vendor agrees that
title and all ownership rights to the Systems, the Equipment and the
Circuit, including the Licensed Software and all copies thereof made
by Credit Vendor hereunder, and any and all copyrights, trademarks,
trade names, trade secret or patent rights, if any, therein shall
reside in Fannie Mae or its Third-Party Licensors, as the case may be.
Credit Vendor further acknowledges that (i) the Systems, the Equipment
and the
-4-
<PAGE>
Circuit are protected by copyright and other intellectual property
laws and by international treaties, and (ii) Credit Vendor has no
rights in the Systems, the Equipment or the Circuit, except those
expressly granted by this Agreement. Fannie Mae agrees that title and
all ownership rights to the Interface, including all copies thereof
made by Fannie Mae hereunder, and any and all copyrights, trademarks,
trade names, trade secret or patent rights, if any, therein shall
reside in Credit Vendor or its third-party licensors, as the case may
be. Fannie Mae further acknowledges that (i) the Interface is
protected by copyright and other intellectual property laws and by
international treaties, and (ii) Fannie Mae has no rights in the
Interface, except those expressly granted by this Agreement.
2.2 Protection. Each party will take all reasonable measures requested by
the other, and as otherwise provided in this Agreement, to protect the
Systems, the Equipment, the Circuit and the Interface from any use,
reproduction, publication, disclosure or distribution, except as
specifically authorized by this Agreement.
2.3 Notices. Each party agrees that it shall not remove, alter, cover or
distort a copyright, trademark or other proprietary rights notice
placed by the other party or any third-party licensor in or on any
component of the Systems, the Equipment, the Circuit or the Interface.
3. GRANT OF RIGHTS AND LEASED-LINE ELECTION; LIMITATIONS AND OTHER CONDITIONS
OF USE.
3.1 License to Use Specifications and Systems. Fannie Mae hereby grants to
Credit Vendor a nonexclusive nontransferable license for the duration
of this Agreement to (a) use the Specifications, (b) load and use the
Licensed Software on two Credit Vendor computers, and (c) access and
use the Systems solely and exclusively in each instance (i) for and in
connection with its development and testing of the Interface, (ii) to
market Systems capability to actual and potential Licensees and LOS
End Users in accordance with Section 11, and (iii) to provide Credit
Reports to Licensees and LOS End Users, whether directly or through
its Technical Affiliates. Credit Vendor shall have the right to copy
the Licensed Software only as is necessary to exercise the foregoing
limited license, for backup and archival purposes and as otherwise
necessary under Section 4.1. Fannie Mae shall deliver one copy of the
Licensed Software in object code form, accompanied by one set of
end-user documentation, sufficient to allow Credit Vendor's operation
of the Licensed Software. Credit Vendor agrees that it shall provide,
and shall require its Technical Affiliates to provide, only fictional
credit reports, and not "live" Credit Reports, in connection with the
uses permitted under Sections 3.1(c)(i) and 3.1(c)(ii), and only by
means of Fannie Mae-provided test loan accounts and files for use as
permitted under such Sections. Credit Vendor's access to and use of
the Systems for such development, testing and marketing purposes shall
be at no additional charge or cost to Credit Vendor, but shall be
limited to one hundred (100) hours in each calendar month.
3.2 Credit Vendor Leased-Line Election. At its option, Credit Vendor may
elect to provide and manage its own dedicated leased-line access to
the Systems by directly procuring equipment and circuits similar to
the Equipment and Circuit. In such event, Fannie Mae shall provide to
Credit Vendor special port access to the Systems. Fannie Mae shall
have no obligation or liability to Credit Vendor or any third party
with regard to any equipment or circuit managed by Credit Vendor or a
third party pursuant to Credit Vendor's election under this Section
3.2. In the event Credit Vendor makes the
-5-
<PAGE>
election referenced in this Section 3.2, Credit Vendor shall remain
liable to Fannie Mae for the applicable fees as set forth in Section 7
and Exhibit "A". The following Sections of this Agreement shall not
apply to the extent Credit Vendor elects to provide and manage its own
equipment and circuits pursuant to this Section 3.2: 2 (but only with
respect to references to the Equipment and/or Circuit), 3.1, 3.4 (but
only with respect to references to the Equipment and/or Circuit), 3.5,
3.6, 3.7 (first and second sentences only), 3.8, 3.9, 3.10, 5 (but
only with respect to references to the Equipment and Circuit),
12.1(iv) and Exhibit "C."
3.3 Equipment Lease. To the extent that Credit Vendor does not elect to
provide and manage its own circuit and equipment, Fannie Mae hereby
leases the Equipment to Credit Vendor for use at the Site in
accordance with the terms and conditions of this Agreement. Credit
Vendor shall use the Equipment in a careful and proper manner to
facilitate Credit Vendor's connection to the Systems via its Interface
and the Circuit, and shall comply fully with all laws and regulations
applicable to the possession and use of the Equipment.
3.4 Limitations on Use; Compliance with Guidelines. The Circuit shall be
used to facilitate the transmission of Credit Reports from Credit
Vendor and its Technical Affiliates to Licensees and LOS End Users via
the Interface, the Systems and LOS Vendors. Credit Vendor shall not
(i) move the Equipment to any location other than the Site without the
prior express written approval of Fannie Mae, (ii) sell, lease,
sublease or distribute the Equipment to any person, firm or entity,
(iii) remove, alter or destroy any labels, plates or markings located
in or on the Equipment, (iv) disassemble, reverse engineer or
otherwise tamper with the Systems or the Equipment, (v) resell or
otherwise provide to a third party (other than a Technical Affiliate)
any access to the Systems or the Circuit, (vi) oversubscribe any port
access provided Credit Vendor under this Agreement, or (vii) attempt
any of the foregoing. If Credit Vendor's usage of the Circuit
increases such that Fannie Mae, in its sole discretion, determines
that such increased usage will necessitate an increase in Circuit
capacity, Credit Vendor agrees that it shall upgrade its Circuit
capacity when and in the manner reasonably requested by Fannie Mae.
Credit Vendor further agrees that it shall comply with all other
technical requirements and guidelines issued by Fannie Mae or its
designee relating to the Equipment, the Circuit, or the Network
Contingency (as defined in Section 3.7 below), or, to the extent
Credit Vendor makes the election pursuant to Section 3.2 above, the
interface of Credit Vendor's separately managed equipment and circuit
with the Systems.
3.5 Security; Conformity to Standards. Credit Vendor shall maintain the
Equipment in a safe and secure place at all times and in accordance
with the Site preparation and environmental standards set forth in
Exhibit C, and shall employ all measures reasonably necessary to
ensure the continued safety, security and maintenance of the Equipment
in accordance with such standards.
3.6 Personnel Requirements. Credit Vendor shall be responsible for
providing personnel who are knowledgeable in network communications to
assist Fannie Mae and/or its designee in the installation of the
Equipment upon Fannie Mae's reasonable request and within a reasonable
period of time after any such request.
3.7 Network Addresses; Network Contingency. In addition to, and not in
limitation of, its obligations under Section 10.1 below, Credit Vendor
agrees that it shall use any network address obtained under or in
connection with this Agreement solely to
-6-
<PAGE>
facilitate its access to the Systems, and for no other purpose. Credit
Vendor agrees that it shall maintain, on a contingency basis, that
number of workstation-linked modems or LAN-to-LAN ISDN lines providing
immediate alternative access to the Systems which Credit Vendor
believes will permit it to continue meeting its business needs in the
event of a Circuit failure (the "Network Contingency"). Credit Vendor
agrees that it shall be solely responsible for maintaining a separate
relationship with a local service provider, and for the payment of any
charges assessed against Credit Vendor by such provider relative to
Credit Vendor's use of the Network Contingency.
3.8 Fannie Mae Access. Credit Vendor agrees that it shall provide Fannie
Mae and/or its designee with reasonable access to the Site in order to
(i) inspect the Equipment as Fannie Mae and/or its designee deems
necessary, upon the provision of three (3) days' prior notice, and
(ii) repair or otherwise maintain the Equipment upon the provision of
such notice as Fannie Mae and/or its designee deem(s) appropriate
under the circumstances. Credit Vendor also agrees to reasonably
cooperate with Fannie Mae and/or its designee in their efforts to
maintain the Equipment.
3.9 Loss and Damage. Upon installation, Credit Vendor assumes and shall
bear the entire risk of loss and damage to the Equipment for any cause
which is not the fault of Fannie Mae and/or its designee. In the event
of loss or damage of any kind for which Credit Vendor bears such risk
as to any item of Equipment, Credit Vendor shall either (i) place the
same in good repair, condition and working order or (ii) if, in the
reasonable judgment of Fannie Mae, the Equipment is determined to be
lost, stolen, destroyed or damaged beyond repair, Credit Vendor shall
pay Fannie Mae the Stipulated Loss Value. Upon payment of the
Stipulated Loss Value, this Agreement shall terminate with respect to
such item of Equipment. Credit Vendor thereupon shall become entitled
to ownership of such item of Equipment as-is-where-is without
warranty, express or implied, with respect to any matter whatsoever.
3.10 Insurance. Credit Vendor shall insure the Equipment against loss or
damage, which insurance shall become effective on the date on which
installation has been completed. The insurance also shall cover Fannie
Mae as its interests may appear. The amount of said insurance shall be
no less than the aggregate Stipulated Loss Value of the Equipment.
Upon execution of this Agreement, Credit Vendor shall provide Fannie
Mae with a certificate of insurance from a company acceptable to
Fannie Mae which evidences compliance with the requirements of this
Section 3.10.
4. TECHNICAL AFFILIATES; INTERFACE DEVELOPMENT AND TESTING, MAINTENANCE AND
SUPPORT.
4.1 Technical Affiliates. Credit Vendor agrees that, within sixty (60)
days of its execution of this Agreement, it shall develop a program
(the "Affiliate Program") through which it shall provide access to the
Systems to its Technical Affiliates in order to facilitate the
provision of Credit Reports to certain Licensees and LOS End Users
pursuant to separate, independently negotiated agreements between
Credit Vendor and each such Technical Affiliate (each, an "Affiliate
Agreement"). The Affiliate Program shall contain goals that are
reasonably acceptable to Fannie Mae and that relate to, among other
things, a minimum number of Technical Affiliates to be added by Credit
Vendor, and the timelines within which such additions are to occur.
Credit Vendor further agrees that (i) access shall be through the
Interface only, (ii) Credit Vendor shall be solely responsible for and
shall manage all business, legal, public relations (subject to Section
11), financial, technical, operational and all other aspects of its
relationship with each
-7-
<PAGE>
Technical Affiliate, including, without limitation, the provision and
management of all training, support, software (including the Licensed
Software), hardware, communications lines and all other items required
to successfully implement Systems access to each Technical Affiliate,
(iii) Fannie Mae shall have no responsibility or obligation arising
from Credit Vendor's election to provide access to the Systems through
its Interface to any Technical Affiliate, and (iv) it shall enter into
Affiliate Agreements, each of which includes provisions conforming
substantially to those set forth in Exhibit D. In addition, Credit
Vendor's rights and obligations arising under Sections 2, 3, 4.4, 5.1,
5.2, 5.3, 5.15, 6, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement
shall extend to a Technical Affiliate, and Credit Vendor hereby
guarantees full performance by each Technical Affiliate of all
applicable obligations set forth in this Agreement and shall retain
all obligations and liabilities under this Agreement in connection
with the use of the Systems by a Technical Affiliate. The parties
acknowledge and agree that the rights granted under this Section 4.1
shall not extend to subsidiaries or affiliates of any Technical
Affiliates, as such.
4.2 Additional Credit Vendor Obligations Regarding Technical Affiliates.
Without limiting the generality of Credit Vendor's obligations set
forth in Section 4.1, Credit Vendor agrees to ensure that Credit
Vendor and/or each of its respective Technical Affiliates provide all
Licensee, LOS End User and consumer support, including such support as
relates to clarification of Credit Report inquiries and error
corrections relative thereto, and the provision of subsequent
corrected Credit Reports requested by a Licensee or LOS End User.
Credit Vendor further agrees that any such corrected Credit Report
transmitted across the Systems for use in the Licensed Software shall
not be a "supplemental" report, as that term is used in the industry,
but rather, shall be an original remerged Credit Report. In any event,
Credit Vendor agrees that it and its Technical Affiliates shall (i)
use the highest standards in the industry to investigate and correct
any consumer or other claims of erroneous data appearing in a Credit
Report, and (ii) notwithstanding the provisions of Section 13,
indemnify and hold Fannie Mae harmless from and against any Losses
which arise out of or result from any Credit Vendor breach of Section
4.1(iv) and/or incorrect or improper adjustments to a Credit Report by
Credit Vendor or a Technical Affiliate. Credit Vendor further agrees
that (i) the Performance Levels shall not be degraded by the addition
of any Technical Affiliate, (ii) Credit Vendor shall use all means,
contractual or otherwise, to ensure that each Technical Affiliate
performs in a manner that does not degrade the Performance Levels,
compliance with which Credit Vendor shall remain solely responsible to
Fannie Mae, and (iii) Credit Vendor shall be liable for any act or
omission of a Technical Affiliate arising out of or resulting from
such Technical Affiliate's access to the Systems, including, without
limitation, such liability as would arise from Credit Vendor's own act
or omission under Sections 2, 3, 4.2, 4.4, 5, 6.1, 6.2, 7.3, 8, 10,
11, 13, 14, 15, 16 and 17.
4.3 Interface Development, Testing and Maintenance. Credit Vendor agrees
that it shall develop the Interface at its own direction, cost and
expense in accordance with the Specifications and a project plan
demonstrating to Fannie Mae's satisfaction Credit Vendor's capacity to
complete integration and testing and enter a production environment by
no later than the date set forth therein (the "Project Plan").
Notwithstanding the provisions of Section 16.2, failure to meet any
milestone or deliverable set forth in the Project Plan may result in
immediate termination of this Agreement, and the forfeiture of any
monies owing and/or paid to Fannie Mae up to the point of termination.
Fannie Mae shall test the Interface, advise Credit Vendor of any
incompatibility with the Systems, and verify functionality once
Interface
-8-
<PAGE>
development is completed. Credit Vendor shall, at its own expense and
as part of its ongoing business activity, provide and maintain all
necessary Interface and related hardware, software and testing
necessary for it to effectively and reliably transmit Credit Reports,
other than the Equipment and any testing and support directly related
to the Equipment and the Circuit. Credit Vendor agrees that it shall
provide and use only fictional credit reports in connection with all
Interface testing and maintenance, except as otherwise directed by
Fannie Mae. Credit Vendor agrees to maintain sufficient fictional
credit reports to satisfy Credit Vendor's uses of the same under
Sections 3.1(c)(i) and 3.1(c)(ii), as well as the testing of Fannie
Mae underwriting requirements. Credit Vendor agrees to establish a
reasonable number of additional fictional credit reports at the
request of Fannie Mae within a reasonable time frame. Credit Vendor
further agrees that it shall implement and maintain security and
related procedures to ensure that test accounts so designated by
Fannie Mae receive only fictional credit reports and never obtain
"live" Credit Reports. Credit Vendor shall be solely responsible for
the accuracy, technical sufficiency and functionality of the Interface
such that compatibility with the Systems is fully maintained for the
duration of this Agreement.
4.4 Technical Support. Credit Vendor agrees that, at its own expense and
as part of its ongoing business activity, it shall make sufficient
qualified personnel available to Fannie Mae to handle technical and
other questions relating to the Interface and transmission of the
Credit Reports and other Documents as set forth in Exhibit B, and
shall respond to and resolve each Incident within the time frames set
forth in Exhibit B.
5. CREDIT REPORT TRANSMISSIONS AND APPLICABLE STANDARDS; LICENSEE ACCEPTANCE.
5.1 Credit Report Format and Transmission Speed. Credit Vendor agrees that
it shall adopt, and shall require its Technical Affiliates to adopt,
any output format and/or result for the Credit Reports reasonably
required by Fannie Mae. In addition, Credit Vendor agrees that, upon
Fannie Mae's request, it shall provide any unique identifying
characteristic(s) generated by (or provided to) a repository tending
to reveal the source of the consumer credit data and/or credit score
that Credit Vendor utilizes in generating the Credit Report associated
with such data and/or score. Credit Vendor further agrees that it
shall conform its merge logic to effect the adoption of such format
and/or result, including, without limitation, the inclusion of Beacon,
Experian FICO and/or Empirica credit scores in each such Credit
Report. In addition to and not in limitation of the foregoing, each
Credit Report and other Document shall be developed and transmitted in
accordance with all standards and other requirements set forth or
otherwise referenced in the Specifications. Credit Vendor agrees that
it shall cause each Credit Report (whether 3-in-file, 2-in-file or
single-in-file) to be transmitted by Credit Vendor and/or its
Technical Affiliate, as the case may require, to any Licensee or LOS
End User requesting the same within that time frame set forth in
Exhibit B (the "Transmission Speed").
5.2 Modifications. If Fannie Mae makes any changes to the Systems such
that a Credit Report format is required to be changed, or Interface
functionality is affected, such as, for example, any changes in merge
logic are required, Fannie Mae shall advise and provide new
Specifications to Credit Vendor as soon as practicable, but in no
event less than sixty (60) days prior to the effective date of any
such modification of the Systems. During this 60-day period, Credit
Vendor shall cause the output format
-9-
<PAGE>
and/or result of the Credit Reports to be conformed to that reasonably
required by Fannie Mae, and shall make any modifications to the
Interface as are required to maintain compatibility between the
modified Systems and the Interface. If Credit Vendor is unable to
effect such conforming changes by the date on which the Systems is
modified, Fannie Mae may declare Credit Vendor in default, and the
provisions of Section 16.2 shall apply.
5.3 Reissued/Duplicate Credit Reports. Credit Vendor agrees that it shall
provide (and it shall require each Technical Affiliate to provide) to
any requesting Licensee or LOS End User, or to any "joint user" or
"agent" (as those terms are defined in the FCRA) of Licensee or LOS
End User (i) a duplicate 3-in-file merged Credit Report based on a
common identity of name, social security number and/or other
consumer-identifiable characteristics (a "Duplicate Report"), and/or
(ii) a reissued 3-in-file Credit Report based on a common reference
number (a "Reissued Report"), where such characteristics or reference
number are provided in the initial Credit Report previously provided
to Licensee or LOS End User by Credit Vendor (or by the same Technical
Affiliate), regardless of the means by which such Licensee or LOS End
User obtained any such prior report. Credit Vendor further agrees that
all such Duplicate and/or Reissued Reports shall be provided to a
party requesting the same within ninety (90) days of the date on which
the corresponding original Credit Report (or other consumer report)
was first issued to a Licensee or LOS End User. Reissued and Duplicate
Reports shall in all instances be provided without being noted as
inquiries in any such Report or subsequent consumer credit report of
the consumer which is the subject of the Duplicate and/or Reissued
Report.
5.4 Separate Agreement. Credit Vendor shall maintain a separate
contractual relationship with each Licensee and LOS End User to which
Credit Vendor transmits a Credit Report (the "Separate Agreement").
Credit Vendor may agree in any such Separate Agreement to terms
governing transactions with a Licensee or LOS End User which are
different from those set forth in Sections 5.5, 5.6 and 5.7 below.
5.5 Transmission of Documents. Credit Vendor shall transmit (i) a
functional acknowledgement to a Licensee or LOS End User evidencing
the Credit Vendor's receipt of a Request Document within a reasonable
period of time, and (ii) either an Acceptance or Rejection Document to
the Licensee or LOS End User within a reasonable period of time.
5.6 Acceptance and Performance. If an Acceptance Document is required for
the acceptance of a Document, a properly received Document shall not
give rise to any obligation unless and until the party initially
transmitting such Document has properly received in return an
Acceptance Document. In the event a Licensee or LOS End User desires
to accept new terms provided in a Rejection Document, such Licensee or
LOS End User shall transmit an Acceptance Document to Credit Vendor.
Upon Credit Vendor's final acceptance of any Credit Report request as
described herein, Credit Vendor shall transmit its Credit Report to
such Licensee or LOS End User within a reasonable period of time, and,
in any event, so as to meet or exceed the Transmission Speed.
5.7 Proper Receipt. No Document shall give rise to any obligation until
properly received by the party to which the Document is transmitted.
Proper receipt of a Document shall occur when such Document is
delivered to the recipient. Whether or not proper receipt of a
Document has in fact occurred and the exact time at which proper
receipt of a
-10-
<PAGE>
Document has in fact occurred and the exact time at which proper
receipt of a Document occurs shall be determined by Fannie Mae by
reference to its Systems transaction records and applicable Systems
procedures. Such Fannie Mae determinations shall be conclusive and
binding on Credit Vendor, LOS End Users and Licensees. Credit Vendor
agrees not to contest any such Fannie Mae determination.
5.8 Grant of License. Credit Vendor understands and agrees that in
providing a Credit Report to a Licensee or LOS End User upon its
request, Credit Vendor effectively grants to such Licensee or LOS End
User a nonexclusive license to use, and to copy for such use, any such
Credit Report.
5.9 Garbled Transmissions; Notification. If Credit Vendor receives a
Document in an unintelligible or garbled form, it shall promptly
notify the transmitting Licensee or LOS End User (if identifiable from
the received Document) and Fannie Mae in a reasonable manner and
within a reasonable period of time.
5.10 Signatures. Credit Vendor shall adopt a Signature to be affixed to or
contained in each Document transmitted by Credit Vendor. Credit Vendor
agrees that (i) any Licensee or LOS End User Signature affixed to or
contained in any Document shall be sufficient to verify that the
Licensee or LOS End User associated with the Signature transmitted
such Document, and (ii) any Credit Vendor Signature affixed to or
contained in any Document shall be sufficient to verify that Credit
Vendor transmitted such Document. Notwithstanding any provision to the
contrary in this Agreement, neither Credit Vendor nor Fannie Mae shall
disclose the Signatures of either party or those of any Licensee or
LOS End User to any unauthorized person.
5.11 Intent of Parties. The terms and conditions of this Agreement have
been agreed upon by the parties to evidence their mutual intent to
facilitate the purchase and sale of Credit Reports through the
electronic transmission and receipt of Documents by and between Credit
Vendor, LOS End Users, LOS Vendors and Licensees utilizing the
Systems. Except as otherwise required herein, the substantive terms of
such purchases and sales shall be generally governed by other
agreements between Credit Vendor and any given Licensee or LOS End
User, including, without limitation, any Separate Agreement(s).
5.12 Signed Documents. Any Document properly transmitted pursuant to this
Agreement shall be considered to be a "writing" or "in writing"; and
any such Document when containing, or to which there is affixed, a
Signature (a "Signed Document") shall be deemed for all purposes (i)
to have been "signed" and (ii) to constitute an "original" when
printed from electronic files or records established and maintained in
the normal course of business.
5.13 Course of Dealing. The conduct of Credit Vendor, LOS Vendors, LOS End
Users, Fannie Mae and its Licensees in accordance with this Agreement
and any Separate Agreement or other agreement, including the use of
Signed Documents properly transmitted pursuant to this Agreement and
any Separate Agreement or other agreement, shall evidence a course of
dealing and course of performance accepted by Credit Vendor, LOS
Vendors, LOS End Users, Fannie Mae and its Licensees for the exclusive
purpose of establishing the enforceability and validity of contracts
formed by the electronic transmission and receipt of Documents.
5.14 No Contest of Validity, Enforceability or Admissibility. Credit Vendor
agrees not to contest the validity or enforceability of Signed
Documents under the provisions of any applicable law relating to
whether certain agreements are to be in writing or signed by
-11-
<PAGE>
the party to be bound thereby. Signed Documents, if introduced as
evidence on paper in any judicial, arbitration, mediation or
administrative proceedings, will be admissible as between the parties
to the controversy to the same extent and under the same conditions as
other business records originated and maintained in documentary form.
Neither party shall contest the admissibility of copies of Signed
Documents under either the business records exception to the hearsay
rule or the best evidence rule on the basis that the Signed Documents
were not originated or maintained in documentary form.
5.15 Licensee Acceptance; Priority of Terms; Registration. Credit Vendor
agrees that it shall enter into a Separate Agreement with each
Licensee referred to Credit Vendor by Fannie Mae, except where any
such Licensee has (i) breached any separate agreement previously
entered into between Credit Vendor and such Licensee, or (ii) failed
to meet Credit Vendor's credit standards applicable to entities
similarly situated to such Licensee. Credit Vendor shall likewise
require each Technical Affiliate to enter into a direct, independent
contractual relationship with each Licensee referred to each such
Technical Affiliate by Fannie Mae through Credit Vendor. Credit Vendor
shall transmit Credit Reports to each Licensee upon such Licensee's
request for the same in accordance with the Separate Agreement and
this Agreement, and shall likewise require the same of each Technical
Affiliate. In the event of any conflict between the terms and
conditions of either such Separate Agreement and the terms and
conditions of this Agreement, the terms and conditions of this
Agreement shall prevail to the extent that Fannie Mae's or a
Licensee's interests are thereby served. With respect to all Licensees
that register with Credit Vendor or any Technical Affiliate, Credit
Vendor agrees that it shall provide Fannie Mae with evidence of such
registration via e-mail, facsimile, or as otherwise directed by Fannie
Mae within twenty four (24) hours of each such registration.
6. PERFORMANCE LEVELS.
6.1 General. In fulfilling its obligations under this Agreement, Credit
Vendor shall perform in accordance with the Transmission Speed and all
other Credit Report, Interface development and testing, maintenance,
and Incident response, resolution and other support standards and
timelines, including such standards as are set forth in Sections 4, 5
and Exhibit B (the "Performance Levels").
6.2 Failure to Perform. If Credit Vendor fails to meet any Performance
Level, Credit Vendor shall immediately (i) investigate and report to
Fannie Mae on the cause(s) of the failure; (ii) prepare an action plan
for Fannie Mae's approval to correct the failure (except as otherwise
provided in Exhibit B), (iii) advise Fannie Mae, as and to the extent
requested by Fannie Mae, of the status of remedial efforts being
undertaken with respect to such failure, (iv) correct the failure and
begin meeting the Performance Levels, and (v) take appropriate
preventive measures so that the failure does not recur. In addition,
each failure to meet a Performance Level shall entitle Fannie Mae to
receive liquidated damages from Credit Vendor as provided in Exhibit
B.
6.3 Measurement and Monitoring Tools. Credit Vendor shall utilize the
necessary measurement and monitoring tools and procedures required to
measure and report Credit Vendor's performance against all Performance
Levels (except with respect to Transmission Speeds, for the
measurement of which Fannie Mae shall be solely responsible). Such
measurement and monitoring shall permit reporting at a level of
-12-
<PAGE>
detail sufficient to verify compliance with the Performance Levels.
Credit Vendor shall provide Fannie Mae with information and access to
such tools and procedures, upon request, for purposes of verification.
Fannie Mae also shall monitor and measure Committed Availability (as
defined in Exhibit B) and Incident resolution and other support
Performance Levels. Any discrepancy between Credit Vendor and Fannie
Mae measurements of the Performance Levels set forth in the preceding
sentence shall be resolved by reference to Fannie Mae's measurement
and monitoring tools and procedures.
7. CHARGES AND PAYMENT.
7.1 Service Charges; Billing and Payment; Taxes. Credit Vendor agrees to
pay all Service Charges set forth on Exhibit A, which charges are
subject to change by Fannie Mae upon sixty (60) days' written notice
to Credit Vendor. Except as provided below, all Service Charges
incurred by Credit Vendor shall, at Fannie Mae's election, be either
(i) invoiced monthly in arrears by Fannie Mae, with payment due upon
Credit Vendor's receipt of an invoice, or (ii) calculated by Credit
Vendor in accordance with Exhibit A and remitted to Fannie Mae within
ten (10) calendar days of the end of each calendar month accompanied
by a statement prepared by Credit Vendor indicating the basis for such
payment (in which event, payment shall be due ten (10) calendar days
of the end of each calendar month regardless of whether or when Credit
Vendor remits such payment and statement). Accounts not paid within
thirty (30) days of the date on which the account becomes due shall be
deemed delinquent and are subject to late charges at a variable annual
rate that is three (3) percentage points above the prime rate
published in the Wall Street Journal, or at the maximum rate permitted
by law, whichever is less, commencing thirty (30) days from (i) the
date of any invoice generated by Fannie Mae, or (ii) ten (10) calendar
days after the end of a calendar month for any Service Charges accrued
in such month but not remitted to Fannie Mae as set forth above, plus
all costs of collection, including without limitation, reasonable
attorneys' fees. Fannie Mae reserves the right to suspend Credit
Vendor's access to the Systems and the Circuit upon the provision of
thirty (30) days' written notice to Credit Vendor if Credit Vendor's
account is delinquent. Credit Vendor agrees that it shall be liable
for all current and future sales, telecommunications and other taxes
and surcharges arising in connection with the Service Charges, except
for any taxes assessed by governmental authorities against Fannie
Mae's net income.
7.2 Audit. Credit Vendor agrees that it shall cooperate fully with Fannie
Mae or its designee to make available such records, information and
documentation as may be reasonably required to document Credit
Vendor's compliance with the terms and conditions of this Agreement,
including without limitation, Section 7.1 and Exhibits A and B. Credit
Vendor agrees that it shall designate and make available to Fannie Mae
a contact person for compliance issues and billing purposes.
7.3 Licensee/LOS End User Billing. Credit Vendor shall cause each Licensee
and LOS End User to be invoiced solely in accordance with the
provisions of any contract between such Licensee (or LOS End User) and
Credit Vendor (or a Technical Affiliate, as the case may be). Fannie
Mae shall not be obligated to, and does not guaranty or otherwise
ensure the payment of, or indemnify Credit Vendor for the non-payment
of, any such invoice.
-13-
<PAGE>
8. WARRANTIES.
Credit Vendor represents and warrants the following to Fannie Mae, upon
which Fannie Mae relies in entering into this Agreement:
8.1 Authorization; No Litigation. Credit Vendor possesses all necessary
rights and authorizations to enter into and perform its obligations
under this Agreement, and neither the Interface nor the intellectual
property or other proprietary Credit Vendor interest forming the basis
of any Credit Report is presently subject to any threatened, pending
or actual litigation.
8.2 Compliance. Development of the Interface and transmission of all
Credit Reports, and the provision of technical, consumer and other
assistance in connection with the same, shall comply with all
applicable laws, rules and regulations, and, except as set forth in
Section 4.2, shall fully conform to all commonly accepted standards
and practices in the industry. Credit Vendor's use of the Systems, the
Equipment and the Circuit shall comply with all applicable laws, rules
and regulations.
8.3 Non-Infringement. Credit Vendor's development and maintenance of the
Interface and all other Credit Vendor performance under this Agreement
shall not in any way constitute infringement or other violation of any
copyright, trade secret, trade or service mark (whether or not
registered), patent, design right, proprietary information or any
other intellectual property rights or other rights of any third party.
8.4 Security. Credit Vendor has established and maintains security
procedures that are reasonably sufficient to ensure that (i) only
fictional credit reports are transmitted to test accounts so
designated by Fannie Mae as required by Section 4.3, (ii) Credit
Vendor's Credit Report transmissions are at all pertinent times
authorized, and (iii) the Interface is protected from unauthorized or
improper access. Credit Vendor has taken all necessary and reasonable
action by instruction, agreement or otherwise with its employees and
other agents to fulfill its warranty obligation under this Section
8.4.
8.5 Support Standards. All technical assistance and support provided
hereunder shall be performed in a timely and professional manner by
qualified Credit Vendor personnel in accordance with Exhibit B.
8.6 No Viruses. Credit Vendor shall use all commercially reasonable
efforts to ensure that the Interface shall be, and each Credit Report
shall be transmitted, free of all known bugs, viruses, so-called "time
bombs" or other functions, routines, devices or instructions designed
or available to create any unauthorized access to, or interruption in
the functioning of, the Systems.
8.7 Century Processing. Each and every hardware, software, firmware,
mechanical, or electrical product utilized, created, assembled,
manufactured, developed, or modified in connection with the Interface
and any Credit Report shall, at no additional cost to Fannie Mae, (i)
be able to store and process accurately any and all data and
date-related data (including, but not limited to, calculating,
comparing, storing, processing, recording, valuing, recognizing,
validating, unambiguously presenting, and sequencing) without error or
malfunction (including in accordance with the applicable
specifications) before, during, and after the twentieth ("20th") and
twenty-first ("21st") centuries, including, but not limited to,
changing accurately the calendar year to the Year 2000, processing
leap year calculations, and processing any other
-14-
<PAGE>
dates with unique digit arrangements such as, by way of example, two
digit year inputs and 9/9/99, all without change in Fannie Mae
operations or human intervention, and (ii) interoperate correctly and
fully with other year 2000-compliant software, hardware and data.
Fannie Mae may, at no additional cost, require Credit Vendor to
demonstrate compliance and/or compliance techniques and test
procedures it intends to follow, or evidence of related
representations, warranties, and obligations contained herein. Nothing
in this warranty shall be construed to limit any rights or remedies
Fannie Mae may otherwise have under this Agreement with respect to
defects other than Year 2000 performance.
8.8 Indemnification; Limitation Waiver. Credit Vendor shall indemnify,
defend, and hold Fannie Mae's officers, employees, directors, and
agents harmless from and against any Losses which arise out of or
result from any third party claim relating to Credit Vendor's breach
of the warranty set forth in Section 8.7 hereof. Section 13 of the
Agreement shall not apply to any breach of Section 8.7 or any
obligation arising under this Section 8.8.
9. CERTIFICATION REQUIREMENT.
Fannie Mae agrees to, and hereby certifies that it shall, require each
Licensee to certify that any Credit Report ordered or requested by such
Licensee shall be ordered or requested in connection with a
prequalification or affordability analysis for, or the taking of an
application in connection with, an actual or potential residential mortgage
loan transaction involving a "consumer" and shall be used for "permissible
purposes" only, as those terms are defined in the FCRA, and for no other
purpose.
10. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
10.1 Protection. All Proprietary Information disclosed by one party to the
other in the course of performing under this Agreement or to which the
other gains access in connection with this Agreement shall be deemed
to be the property of the disclosing party, or the appropriate
Third-Party Licensor (or other third-party owner), as the case may be.
The receiving party agrees to (i) receive such Proprietary Information
in confidence, (ii) use reasonable efforts to maintain the
confidentiality of such Proprietary Information and not disclose such
Proprietary Information to third parties (except for the receiving
party's representatives, agents and contractors who have a need to
know, are under a duty of non-disclosure, and are acting for the sole
benefit of the receiving party), which efforts shall accord such
Proprietary Information at least the same level of protection against
unauthorized use and disclosure that the receiving party customarily
accords to its own information of a similar nature, (iii) use or
permit the use of such Proprietary Information solely in accordance
with the terms of this Agreement, and (iv) promptly notify the
disclosing party in writing of any loss or unauthorized use,
disclosure or access of the disclosing party's Proprietary Information
of which it becomes aware. The terms and conditions of this Agreement
(as well as all information regarding the negotiation of this
Agreement) shall be deemed to be the Proprietary Information of both
parties, and shall not be disclosed by either party without the prior
written consent of the other party. Each party agrees that it shall
abide by and reproduce and include any restrictive legend or
proprietary rights notice that appears on or in any Proprietary
Information of the other party or any Third-Party Licensor (or other
third-party owner) that it is authorized to reproduce. Each party also
agrees that it shall not
-15-
<PAGE>
remove, alter, cover or distort any trademark, trade name, copyright
or other proprietary rights notices, legends, symbols or labels
appearing on or in any Proprietary Information of the other party or
any Third-Party Licensor (or other third-party owner).
10.2 Exclusions. The restrictions on disclosure set forth above shall not
apply when, and to the extent that the Proprietary Information: (i) is
or becomes generally available to the public through no fault of the
receiving part (or anyone acting on its behalf), except with respect
to any inter-networking address(es) provided to Credit Vendor by
Fannie Mae; (ii) was previously rightfully known to the receiving
party free of any obligation to keep it confidential; (iii) is
subsequently disclosed to the receiving party by a third party who may
rightfully transfer and disclose such information without restriction
and free of any obligation to keep it confidential; (iv) is
independently developed by the receiving party or a third party
without reference to the disclosing party's Proprietary Information;
or (v) is required to be disclosed by the receiving party as a matter
of law, provided that the receiving party uses all reasonable efforts
to provide the disclosing party with at least ten (10) days' prior
notice of such disclosure if permitted by applicable legal process,
the receiving party discloses only that portion of the Proprietary
Information that is legally required to be furnished pursuant to the
opinion of legal counsel of the receiving party, and the receiving
party uses all reasonable efforts to obtain confidential treatment of
the disclosing party's Proprietary Information. Notwithstanding the
foregoing, neither party shall disclose, or permit the disclosure of,
the terms or conditions of this Agreement without the prior written
consent of the other party, except (A) as provided in Section 10.2(v)
above, (B) to the extent necessary to permit the exercise of its
rights or the performance of its obligations under this Agreement, or
(C) to seek advice from its attorneys, accountants or other
professional advisors.
10.3 Transmission Monitoring. Credit Vendor consents to Fannie Mae's
interception, collection, use, reproduction, storage and review of any
Document (i) when any such Document relates to a loan purchased by
Fannie Mae with respect to which Credit Vendor provides products or
services to Fannie Mae or on Fannie Mae's behalf, and/or (ii) to
facilitate (A) billing, (B) network maintenance, including, without
limitation, the diagnosis and correction of Incidents, (C) the
protection and security of the Systems, (D) compliance with applicable
law or valid legal process, or (E) Fannie Mae's collection,
generation, storage, reproduction, and use of statistical information
for purposes of, among other things, measuring the use of the Systems
and/or any Credit Reports provided to, from, or between Credit Vendor
and any Licensee or LOS End User. Except as required by law or by
valid legal process, Fannie Mae shall not, without Credit Vendor's
consent, specifically identify Credit Vendor in association with such
statistical information. In no event shall Fannie Mae market,
distribute or otherwise share with any third party any Document
intercepted, reproduced, stored, accessed or otherwise used under
Section 10.3(ii). However, in connection with such interception,
collection, reproduction, storage or usage, Fannie Mae shall have the
right to remove any Document the content of which Fannie Mae deems to
be in violation of law or any term or condition set forth in this
Agreement. Notwithstanding the foregoing, Fannie Mae shall have no
obligation to remove, screen, police, edit or monitor any Document.
10.4 Injunctive Relief. Each party acknowledges that the unauthorized
disclosure of the other's Proprietary Information is likely to cause
irreparable injury to the other party for which the other party will
have no adequate remedy at law. Accordingly, each party consents to
the entry of injunctive relief against it to prevent or remedy any
breach of this Section 10 (or Sections 3.1 or 3.4).
-16-
<PAGE>
11. MARKETING; MARKS.
11.1 Marketing Obligations. Subject to the terms and conditions of this
Agreement, Credit Vendor agrees that it shall participate in
"kick-off" presentations, conferences and similar marketing events
sponsored by Fannie Mae, and shall exercise reasonable, diligent and
good faith efforts to market and promote the Systems to Credit
Vendor's actual and potential customer base and Technical Affiliates.
Such efforts shall include, without limitation, making sales calls to
such customer base to promote the use of the Systems, and highlighting
the Systems in Credit Vendor brochures in accordance with the
provisions of this Section 11.
11.2 Cost Allocation. All costs pertaining to maintenance of inventory and
distribution to Licensees of any Equipment and Licensed Software shall
be borne by Fannie Mae. Costs incurred by Credit Vendor in the course
of marketing the Systems shall be borne by Credit Vendor.
11.3 Unauthorized Representations. Credit Vendor agrees not to make (i) any
representations, statements or suggestions to a third party that
purport to be or might reasonably be construed to be made on behalf of
Fannie Mae, or (ii) any representations regarding the capabilities of
the Systems, other than those set forth in any Fannie Mae
documentation relating to the Systems or otherwise expressly
authorized by this Agreement.
11.4 Use of Marks; Approval Procedure. Each party will submit to the other
party for its prior approval, which approval may be withheld at such
party's sole discretion, that portion of any brochure, press release,
Internet posting, user interface, marketing, advertising, promotional
or similar materials referencing the other party and/or its Marks in
connection with this Agreement (the "Materials"). Once approved, such
Materials may be reused until such approval is withdrawn pursuant to
Section 11.5. Notwithstanding the foregoing, the parties agree that
statements of fact made in routine correspondence with specific
customers shall not constitute "Materials"; provided however, that any
such statement conforms to the requirements of this Agreement,
including, without limitation, Section 11.3.
11.5 Withdrawal of Approval. The rights granted in Section 11.4 may be
withdrawn at any time by the granting party upon reasonable prior
written notice. In the event of such withdrawal, existing inventories
of printed Materials may be depleted.
11.6 Exclusion. Notwithstanding the foregoing provisions of this Section
11, either party may provide disclosures as required by law or as
reasonably advised by legal counsel without the consent of the other
party, and in such event prompt notice thereof shall be provided to
the other party.
11.7 Ownership of Marks. Each party acknowledges and agrees that (i) the
other party's Marks are and shall remain the sole property of the
other party, (ii) nothing in this Agreement shall confer in a party
any right of ownership or license rights in the other party's Marks,
and (iii) neither party shall register the other party's Marks. In
addition, Credit Vendor acknowledges and agrees that (i) the Marks of
Third-Party Licensors are and shall remain the sole property of such
Third-Party Licensors, (ii) nothing in this Agreement shall confer in
Credit Vendor any right of ownership or license rights in the Marks of
Third-Party Licensors, and (iii) Credit Vendor shall not register the
Marks of Third-Party Licensors. Without limiting the generality of the
foregoing, Credit Vendor agrees not to use or adopt any trade name,
trademark, logo or service mark which is so similar to Fannie Mae's
Marks or the Marks of Third-Party Licensors as to be likely to
-17-
<PAGE>
cause deception or confusion, or which is graphically or phonetically
similar to any of Fannie Mae's Marks or the Marks of Third-Party
Licensors.
11.8 Legend Requirement. Unless otherwise agreed in writing, when using the
other party's Marks pursuant to this Agreement, a party shall take all
reasonable measures required to protect the other party's rights in
such Marks, including, but not limited to, the inclusion of a
prominent legend identifying such Marks as the property of the other
party. In addition, Credit Vendor shall include a legend to the effect
that its use of Fannie Mae's name or marks is for illustration
purposes only and does not represent an endorsement by Fannie Mae of
Credit Vendor or the Credit Reports, or Credit Vendor's other products
and services.
11.9 Joint Marketing with Technical Affiliates. As part of its Affiliate
Agreement, Credit Vendor may obtain the participation of a Technical
Affiliate to assist in Credit Vendor's marketing efforts under Section
11.1 of this Agreement; provided, however, that Credit Vendor shall
ensure that such Technical Affiliate complies with all other
provisions of Section 11.
12. FANNIE MAE WARRANTY.
12.1 Fannie Mae represents and warrants to Credit Vendor that (i) the
Systems comprise a functional computer network accessible to Licensees
in good standing, (ii) Fannie Mae possesses all necessary rights and
authorizations to enter into and perform under this Agreement, (iii)
the Systems are not subject to any pending litigation as of the
effective date of this Agreement, and (iv) with respect to the
Equipment, all product warranties provided by the manufacturer of each
item of Equipment shall be passed through to Credit Vendor.
12.2 THE WARRANTIES SET FORTH IN SECTION 12.1 ARE THE SOLE AND EXCLUSIVE
WARRANTIES GIVEN BY FANNIE MAE IN CONNECTION WITH THE SYSTEMS, THE
EQUIPMENT, THE CIRCUIT, ANY COMPONENT THEREOF OR OTHERWISE UNDER THIS
AGREEMENT. FANNIE MAE AND ITS THIRD-PARTY LICENSORS HEREBY EXPRESSLY
DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR
COURSE OF PERFORMANCE, AND ANY WARRANTIES OF NON-INFRINGEMENT.
12.3 Without derogating the generality of the foregoing, Fannie Mae and its
Third-Party Licensors specifically do not warrant that (i) the
Systems, the Equipment, the Circuit or any components thereof will
perform without interruption or error, (ii) the Systems, the Equipment
or the Circuit will meet Credit Vendor's requirements, (iii) the
Systems, the Equipment or the Circuit will operate in the
configuration which Credit Vendor may select for use, or (iv) data or
other information generated by the Systems, the Equipment or the
Circuit will be accurate or complete. Neither Fannie Mae nor its
Third-Party Licensors shall be responsible for the accurate or
complete transmission of data or other materials. The warranties set
forth in Section 12.1 shall not apply to any irregularities, errors,
problems or defects arising from (i) modification of the Systems, the
Equipment or the Circuit by any party other than Fannie Mae or from
accident, neglect, abuse, misuse or misapplication, (ii) failure of
Credit Vendor to provide a suitable installation and operating
environment, including but not limited to, failure to use supplies,
materials, software and hardware platforms that meet the
specifications set forth in the Documentation or Exhibit C, (iii)
Credit Vendor's incorporation,
-18-
<PAGE>
attachment or engagement of any attachment, feature, program or device
to the Systems, the Equipment or the Circuit, if the Systems, the
Equipment or the Circuit would have conformed to the warranty set
forth in Section 12.1 but for such incorporation, attachment or
engagement, (iv) use of the Systems, the Equipment or the Circuit
outside the scope of their intended purpose, or (v) Credit Vendor's
failure to incorporate any update previously released by Fannie Mae
that corrects such item. Fannie Mae reserves the right to (i) modify
the Systems, the Equipment or the Circuit or substitute any materials
contained therein so long as the new materials do not materially
affect the functionality of the Systems, the Equipment or the Circuit,
and (ii) discontinue the provision and/or support of the Systems, the
Equipment or the Circuit. Access to the Systems, the Equipment or the
Circuit during any beta and/or pilot test period is provided "as is."
13. LIMITATION OF LIABILITY.
13.1 EXCEPT WITH RESPECT TO ANY BREACH OF SECTIONS 3.1, 3.4 OR 10 HEREOF,
IN NO EVENT SHALL EITHER PARTY, OR ANY THIRD-PARTY LICENSOR, OR THEIR
RESPECTIVE AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS,
AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, AS SUCH,
BE LIABLE TO THE OTHER PARTY OR ANYONE CLAIMING UNDER OR THROUGH THE
OTHER PARTY FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT,
CONSEQUENTIAL OR SPECIAL DAMAGES UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE SYSTEMS, THE EQUIPMENT, THE CIRCUIT, THE INTERFACE, OR
ANY CREDIT REPORT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
PROFITS (EXCLUDING FANNIE MAE'S PROFITS UNDER THIS AGREEMENT),
INTEREST, REVENUE, DATA OR USE, OR INTERRUPTION OF BUSINESS, INCURRED
BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER BASED UPON CONTRACT,
TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND
STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS,
EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY. IN ADDITION, FANNIE MAE AND ITS THIRD-PARTY LICENSORS, AND
THEIR RESPECTIVE AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS,
AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS SUCH,
SHALL HAVE NO LIABILITY FOR LOSSES RESULTING FROM UNAUTHORIZED USE OF
THE SYSTEMS, THE EQUIPMENT OR THE CIRCUIT BY CREDIT VENDOR OR BY THOSE
GAINING ACCESS TO THE SYSTEMS, THE EQUIPMENT OR THE CIRCUIT AS A
RESULT OF CREDIT VENDOR'S ACTS OR OMISSIONS.
13.2 INDEPENDENT OF, SEVERABLE FROM, AND TO BE ENFORCED INDEPENDENTLY OF
ANY OTHER ENFORCEABLE OR UNENFORCEABLE PROVISION OF THIS AGREEMENT,
AND, EXCEPT WITH RESPECT TO ANY BREACH OF SECTIONS 3.1, 3.4 OR 10
HEREOF, IN NO EVENT SHALL THE TOTAL LIABILITY OF EITHER PARTY AND ITS
THIRD-PARTY LICENSORS (AND THEIR RESPECTIVE AFFILIATES, PARTNERS,
OFFICERS, EMPLOYEES, DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES,
SUCCESSORS AND ASSIGNS, AS SUCH), TO THE OTHER PARTY OR ANY THIRD
PARTY CLAIMING UNDER OR THROUGH SUCH OTHER PARTY FOR ANY AND ALL
LOSSES, INCLUDING, WITHOUT LIMITATION, CAUSES OF ACTION AND CLAIMS
BASED UPON BREACH OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO,
NEGLIGENCE, DUTY TO WARN AND STRICT LIABILITY), BREACH OF WARRANTY OR
ANY OTHER LEGAL OR EQUITABLE GROUNDS, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE SYSTEMS, THE EQUIPMENT, THE CIRCUIT, THE INTERFACE OR
ANY CREDIT REPORT OR RELATED SOFTWARE, SERVICES, OR INFORMATION,
-19-
<PAGE>
EXCEED THE TOTAL SERVICE CHARGES RECEIVED BY FANNIE MAE FROM CREDIT
VENDOR DURING THE CONSECUTIVE TWELVE-MONTH PERIOD IMMEDIATELY
PRECEDING THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO SUCH LIABILITY
(OR $25,000.00, WHICHEVER IS GREATER).
13.3 FANNIE MAE AND CREDIT VENDOR EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE
LIMITATIONS AND EXCLUSIONS CONTAINED HEREIN (i) REPRESENT THE PARTIES'
AGREEMENT AS TO THE ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING,
WITHOUT LIMITATION, THE POSSIBILITY THAT A REMEDY MAY FAIL OF ITS
ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS) AND THAT THE AMOUNTS
PAYABLE TO FANNIE MAE AND CREDIT VENDOR PURSUANT TO THIS AGREEMENT
REFLECT SUCH ALLOCATION OF RISK, WITHOUT WHICH NEITHER PARTY WOULD NOT
HAVE BEEN WILLING TO ENTER INTO THIS AGREEMENT, AND (ii) FORM AN
ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
14. INDEMNITY.
14.1 Notwithstanding the provisions of Section 13 hereof, Credit Vendor
shall indemnify and hold harmless Fannie Mae and its affiliates,
partners, officers, employees, directors, agents, contractors,
representatives, successors and assigns, as such, from and against any
Losses which arise out of or result from any third-party claim that
(i) relates to a dispute or alleged dispute between Credit Vendor and
a Licensee, LOS End User or other third party relating to any
material, product or service sold or distributed by Credit Vendor
utilizing the Systems, including, without limitation, any Credit
Report, (ii) Credit Vendor does not have sufficient right, title or
interest in the Interface or any Credit Report to enter into this
Agreement, or that the Interface or any Credit Report violates an
existing United States patent (in existence as of the date on which
this Agreement is executed), copyright, trademark, trade secret or
other United States intellectual property right of any third party,
(iii) Credit Vendor has breached a covenant, representation or
warranty set forth in this Agreement or otherwise, (iv) Credit Vendor
has violated federal or state law, rule and/or regulation, and/or (v)
a Credit Report results or allegedly results in defamation or other
injury to reputation of any third party.
14.2 Notwithstanding the provisions of Section 13 hereof, Fannie Mae shall
indemnify and hold harmless Credit Vendor and its affiliates,
partners, officers, employees, directors, agents, contractors,
representatives, successors and assigns, as such, from and against any
Losses which arise out of or result from any third-party claim that
Fannie Mae does not have sufficient right, title or interest in the
Systems, the Equipment or the Circuit to enter into this Agreement or
that the Systems, the Equipment or the Circuit violates an existing
United States patent (in existence as of the date on which this
Agreement is executed), copyright, trademark, trade secret or other
United States intellectual property right of any third party.
14.3 In the event that any patent, copyright, trademark, service mark,
trade secret or other intellectual property right claim referenced in
Sections 14.1 or 14.2 is made, or in the opinion of the party owning
the materials likely to be the subject of such a claim (the "Subject
Property"), is likely to be made, such owning party reserves the
right, in its sole discretion, to (i) procure for the other party the
right to continue to use the Subject Property, (ii) replace the
Subject Property to avoid infringement, or (iii) modify the Subject
Property to avoid infringement.
14.4 Neither party nor its third-party licensors shall have any obligation
under Sections 14.1 or 14.2 with respect to any claim of infringement
to the extent based upon the other
-20-
<PAGE>
party's (i) use of the Subject Property in violation of this
Agreement, (ii) modification or marking of the Subject Property, or
any portion thereof, where, in the absence of such modification or
marking, the Subject Property would not be infringing (unless such
modification or marking has been specifically authorized by the owner
of the Subject Property in question), (iii) use of the Subject
Property in combination with other software, documentation, hardware
or data, if use without such software, documentation, hardware or data
would not be infringing, (iv) use of a superseded version of any
Subject Property if infringement could have been avoided by the use of
the current version, (v) use of the Subject Property in practicing any
infringing process, (vi) use of the Subject Property in a manner for
which it was not designed, (vii) continued use of the Subject Property
after such other party has received notice of the claim of
infringement and a written request from the owning party to cease use
of the Subject Property, (vii) activities after the owning party has
notified such other party that the owning party believes such
activities may result in such infringement, (viii) designs,
specifications or instructions, or (ix) use of any marks other than a
party's Marks pursuant to Section 11.5.
14.5 EXCEPT WITH RESPECT TO ANY LIABILITY ARISING UNDER SECTION 8.3 HEREOF,
THE REMEDIES SET FORTH IN THIS SECTION 14 SHALL BE THE SOLE AND
EXCLUSIVE REMEDIES AVAILABLE TO THE PARTIES AND EACH PARTY'S SOLE
LIABILITIES AND OBLIGATIONS FOR ANY CLAIMS BROUGHT AGAINST EITHER OF
THEM BASED UPON INTELLECTUAL PROPERTY INFRINGEMENT, WHETHER UPON THE
THEORY OF WARRANTY, INDEMNITY OR OTHERWISE.
15. INDEMNIFICATION PROCEDURES AND SUBROGATION.
15.1 Procedures. Promptly after receipt by any person entitled to
indemnification under this Agreement (the "Indemnified Party") of
notice of a claim, or of the commencement (or threatened commencement)
of any civil, criminal, administrative or investigative action or
proceeding involving a claim, in respect of which the Indemnified
Party will seek indemnification pursuant to this Agreement, the
Indemnified Party shall notify the party that is obligated to provide
such indemnification (the "Indemnifying Party") of such claim in
writing. No failure to so notify the Indemnifying Party shall relieve
the Indemnifying Party of its obligations under this Agreement except
to the extent that it can demonstrate damages attributable to such
failure. Except as provided in Section 15.2, the Indemnifying Party
shall be entitled to have sole control over the response to, defense
and settlement of such claim, provided that, within fifteen (15) days
after receipt of such written notice, the Indemnifying Party notifies
the Indemnified Party of its election to so assume full control. In
the event the Indemnifying Party does elect to so assume control: (i)
the Indemnified Party shall be entitled to participate in the response
to such claim and to employ counsel at its own expense to assist in
the handling of such claim, (ii) the Indemnifying Party shall obtain
the prior written approval of the Indemnified Party (which approval
shall not be unreasonably withheld or delayed) before entering into
any settlement of such claim or ceasing to defend against such claim
if such settlement or cessation would cause injunctive relief to be
imposed against the Indemnified Party, and (iii) the Indemnifying
Party shall promptly reimburse the Indemnified Party for any legal
expenses reasonably incurred by the Indemnified Party in connection
with the defense of such claim prior to the Indemnified Party's
receipt of the Indemnifying Party's notice of its election to assume
full control over the response to such claim. After notice by the
Indemnifying Party to the Indemnified Party of its election to assume
full control, the Indemnifying Party shall not be liable to the
Indemnified Party for any further legal expenses incurred by such
Indemnified Party in connection with the defense of that claim. If the
Indemnifying Party does not
-21-
<PAGE>
assume sole control over the response to such claim as provided in
this Section, the Indemnifying Party may participate in such response
and the Indemnified Party shall have the right to respond to and
defend the claim in such manner as it may deem appropriate, at the
cost and expense of the Indemnifying Party. The Indemnifying Party
shall promptly reimburse the Indemnified Party for such costs and
expenses.
15.2 Exclusion. Notwithstanding anything set forth in Section 15.1 to the
contrary, in the event an Indemnified Party reasonably believes and so
notifies the Indemnifying Party in writing that the applicable claim,
even if fully indemnified for, is reasonably likely to have a material
adverse effect on the Indemnified Party, then the Indemnifying Party
shall not have the right to control the response to, defense and
settlement of such claim, but shall have the right to employ separate
counsel at its own expense to assist in the handling of such claim by
the Indemnified Party. In such an event, (i) the Indemnified Party and
its counsel shall consult, wherever reasonably practicable, with the
Indemnifying Party and its counsel with respect to the status of the
claim and any related litigation or proceedings, and (ii) the
Indemnified Party shall bear the expense of its counsel.
15.3 Settlement. An Indemnifying Party shall not be required to indemnify
any Indemnified Party for any amount paid or payable by such
Indemnified Party in the settlement of any claim which was agreed to
without the written consent of the Indemnifying Party, which consent
shall not be unreasonably withheld or delayed.
15.4 Subrogation. In the event that an Indemnifying Party shall be
obligated to indemnify an Indemnified Party pursuant to this
Agreement, the Indemnifying Party shall, upon payment of such
indemnity in full, be subrogated to all rights of the Indemnified
Party with respect to the claims and defenses to which such
indemnification relates.
16. TERM AND TERMINATION.
16.1 Term and Renewal. This Agreement shall remain in effect for twelve
(12) months after the date first set forth above, and shall renew
automatically for additional 12-month terms, unless either party
provides the other with thirty (30) days' written notice of its intent
not to renew the Agreement.
16.2 Termination for Cause. Either party may terminate this Agreement upon
thirty (30) days' prior written notice describing a material breach by
the other party of any term or condition of this Agreement, which
breach has not been cured by the breaching party during such thirty
(30) day notice period. Fannie Mae may terminate this Agreement,
effective immediately, upon notice to Credit Vendor in the event (i)
of any material breach by Credit Vendor of the provisions of Sections
3.1, 3.4, or Section 10 hereof, or (ii) Credit Vendor attempts to
cause or causes the Licensed Software or any component of the Systems,
the Equipment or the Circuit to malfunction or suffer damage, or fails
to take steps reasonably requested by Fannie Mae to correct a
malfunction or damage. In addition, this Agreement will terminate
automatically if Credit Vendor becomes insolvent or enters into
bankruptcy, suspension of payments, moratorium, reorganization, or any
other proceeding that relates to insolvency or protection of
creditor's rights.
16.3 Termination for Convenience. Fannie Mae reserves the right to
terminate this Agreement at any time and for any reason; provided,
however, that Credit Vendor shall be provided with sixty (60) days'
written notice of Fannie Mae's election to terminate the Agreement
under this Section.
-22-
<PAGE>
16.4 Survival. Neither party shall have any continuing obligations to the
other upon and after the effective date of termination or expiration
of this Agreement, except that (i) Credit Vendor shall pay Fannie Mae
all Service Charges accrued and owing prior to the date of termination
or expiration and any late charges relating thereto; (ii) at Credit
Vendor's own cost, Credit Vendor shall ship the Equipment to Fannie
Mae with insurance in the amount specified as the Stipulated Loss
Value in Exhibit C within (10) days of termination or expiration of
the Agreement; (iii) each party shall immediately destroy any existing
inventory of Materials and return any Proprietary Information of the
other party to such other party that is not otherwise destroyed; (iv)
immediately thereafter each party shall provide the other party with
written certification of its compliance with the foregoing, executed
by a duly authorized officer of such party; and (v) any provisions of
this Agreement that contemplate their continuing effectiveness,
including, without limitation, Sections 2, 3.2 (third and fourth
sentences only, 3.9 (to the extent applicable under Section 3.2),
4.1(iii), 4.2(iii), 6.2 (last sentence), 7, 8, 10, 11.4, 11.5, 11.8,
11.9, 11.10, 12, 13, 14, 15, 16.4, 17 and each Exhibit shall survive
any termination or expiration of this Agreement.
17. GENERAL PROVISIONS.
17.1 Assignment. This Agreement may not be assigned by Credit Vendor to any
other person(s), firm(s), corporation(s) or other entities (by
operation of law or otherwise) without the prior express written
approval of Fannie Mae, and any attempt to assign without such
approval shall be void.
17.2 Notices. Unless otherwise specified in this Agreement, all notices,
requests, demands, and other communications (other than routine
operational or billing communications) required or permitted hereunder
shall be in writing (with electronic mail or Fannie Mae postings to
the Systems deemed to be a "writing" for this purpose) and shall be
deemed to have been received by a party (i) when actually received in
the case of hand delivery against a signed receipt, (ii) two (2)
business days after being given to a reputable overnight courier with
a reliable system for tracking delivery, (iii) when sent by confirmed
facsimile, (iv) upon receipt, when mailed by United States mail,
registered or certified mail, return receipt requested, postage
prepaid, (v) one (1) day after transmission by electronic mail with a
copy sent by United States mail within 48 hours of such transmission,
or (vi) upon posting by Fannie Mae to the Systems, and (i) with
respect to Fannie Mae, addressed to Ms. Sue Keil, Director of
Technology Marketing at the address and/or facsimile number provided
to Credit Vendor by Fannie Mae, and (ii) with respect to Credit
Vendor, addressed to Credit Vendor's point of contact, address and/or
facsimile number provided to Fannie Mae by Credit Vendor. A party may
from time to time change its address, facsimile number or designee for
notification purposes by giving the other party prior written notice
of the new address, facsimile number or designee and the date upon
which such change will become effective.
17.3 Governing Law; Severability. This Agreement shall be governed by and
construed solely and exclusively in accordance with the laws of the
District of Columbia, without reference to or application of its
conflicts of law principles. If any of the provisions of this
Agreement are invalid under any applicable statute or law, such
provisions shall be deemed to be deleted from this Agreement to the
extent of such invalidity, and the remainder of this Agreement shall
remain in full force and effect.
17.4 Force Majeure. Neither party shall be responsible for delays or
failure of performance (other than the payment of money) resulting
from acts beyond the reasonable control of such party (except that
acts of Technical Affiliates are deemed to be within the
-23-
<PAGE>
reasonable control of Credit Vendor). Such acts shall include, but not
be limited to, acts of God, riots, acts of war, epidemics, failure of
suppliers to perform (except with respect to any such performance
failure of a Technical Affiliate), governmental regulations, power
failures, earthquakes, or other disasters.
17.5 Headings. The titles and headings of the various sections and
paragraphs in this Agreement are intended solely for convenience of
reference and are not intended to explain, modify or place any
construction or limitation upon any of the provisions of this
Agreement.
17.6 Amendments. The terms of this Agreement may be amended solely by a
writing expressly purporting to create an amendment or supplement to
this Agreement and executed by a duly authorized officer of Fannie Mae
and Credit Vendor.
17.7 Entire Agreement. No representations or statements of any kind made by
either party that are not expressly stated herein or in any written
amendment hereto shall be binding on such party. The parties agree
that this Agreement, including all Exhibits hereto, shall constitute
the complete and exclusive statement of the agreement between them,
and supersedes all prior or contemporaneous communications, proposals
or agreements, oral or written, relating to the subject matter hereof.
17.8 Jurisdiction. Any and all disputes between the parties that cannot be
settled by mutual agreement shall be resolved solely and exclusively
in the courts located within the District of Columbia, and Credit
Vendor hereby consents to the jurisdiction of such courts and
irrevocably waives any objections thereto, including without
limitation, on the basis of improper venue or forum non conveniens.
17.9 No Third-Party Beneficiaries. The parties agree that Fannie Mae shall
be and hereby is designated an intended third party beneficiary of
each Affiliate Agreement for the sole purpose of enforcing Fannie
Mae's rights arising under or relating to Sections 4.1 and 4.2 and/or
the terms and conditions set forth in Exhibit D, and/or any other
right or remedy available to Fannie Mae under this Agreement, an
Affiliate Agreement or at law or in equity. Otherwise, nothing in this
Agreement is intended to or shall create any third-party
beneficiaries, whether intended or incidental, and neither party shall
make any representations to the contrary.
17.10 Restricted Rights. If Credit Vendor is any unit or agency of the U.S.
Government, then the following provision applies:
U.S. GOVERNMENT RIGHTS
Use, duplication, or disclosure by the U.S. Government is subject to
restrictions set forth in this Agreement and as provided in DFARS
227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii)
(OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT
III), as applicable. Fannie Mae, 3900 Wisconsin Ave., N.W.,
Washington, D.C. 20016.
17.11 Foreign Users. Except for Canadian citizens using the Licensed
Software in the United States, Licensed Software shall not be used by
any foreign entity or foreign person, as defined by United States
government export control regulations, including, without limitation,
anyone who is not a citizen, national or lawful permanent resident of
the United States. Credit Vendor hereby represents and warrants that
it is not a foreign person or entity or under control of a foreign
person or entity.
-24-
<PAGE>
17.12 No Implied Waiver. No term, provision or clause of this Agreement
shall be deemed waived and no breach excused unless such waiver or
consent shall be in writing and executed by a duly authorized officer
of the party to be bound thereby. Any consent by any party to, or
waiver of, a breach by the other, whether express or implied, shall
not constitute a consent to, waiver of, or excuse for any different or
subsequent breach.
17.13 Non-Agency. The parties are independent contractors. Nothing in this
Agreement shall be construed to make the parties partners, joint
venturers, representatives or agents of each other, nor shall either
party so represent to any third person. No employer-employee
relationship is intended to be created by this Agreement.
17.14 Facsimiles. The parties acknowledge and agree that copies of executed
documents received via facsimile shall be deemed to be originals for
all purposes.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT, AND
AGREES TO BE BOUND BY THE TERMS HEREOF.
FANNIE MAE [CREDIT VENDOR NAME]
FACTUAL DATA CORP.
By: /s/ David Brashear By: /s/ Jerald H. Donnan
---------------------------------- ----------------------------------
Name: DAVID BRASHEAR Name: Jerald H. Donnan
-------------------------------- --------------------------------
Title: VICE PRESIDENT Title: President & CEO
------------------------------- -------------------------------
Date: 11-12-98 Date: November 11, 1998
-------------------------------- -------------------------------
-25-
<PAGE>
EXHIBIT A
CREDIT REPORT TRANSMISSION AND ACCESS MARKETING AGREEMENT
SERVICE CHARGES FOR CREDIT VENDOR
1. Monthly Fees.*
2. Credit Report Fees*
3. Technical Affiliate Fees*
A-1
* The service charge prices on Exhibit A have been omitted pursuant to a
request for confidential treatment submitted to the Securities and Exchange
Commission.
<PAGE>
EXHIBIT B
CREDIT REPORT TRANSMISSION AND ACCESS MARKETING AGREEMENT*
PERFORMANCE LEVELS FOR CREDIT VENDOR
B-1
* The technical performance levels on Exhibit D have been omitted pursuant to
a request for confidential treatment submitted to the Securities and
Exchange Commission.
<PAGE>
EXHIBIT C
CREDIT REPORT TRANSMISSION AND ACCESS MARKETING AGREEMENT
EQUIPMENT-RELATED PROVISIONS FOR CREDIT VENDOR
STIPULATED LOSS VALUE
o Fannie Mae shall provide the following Equipment, bearing the designated
Stipulated Loss Value, to each of Credit Vendor's designated Sites:
Equipment Stipulated Loss Value
--------- ---------------------
One (1) Router $5000.00
One (1) DSU $1000.00
One (1) modem $1000.00
Assorted cables $ 100.00
SITE PREPARATION & ENVIRONMENTAL REQUIREMENTS
o Credit Vendor shall prepare the Site and maintain certain environmental
standards for and in connection with installation of the Equipment as
follows:
OVERALL
- Provide adequate space for installation of the Equipment with front
and rear service clearances in a secure, weather-protected area with
controlled access in all ways suitable for computers and the
Equipment.
- Provide one dedicated unlisted analog telephone line which is
terminated in a standard RJ11C telephone jack in the vicinity of the
Equipment. Such telephone line shall provide Fannie Mae and/or its
designee access to the Equipment during its installation and during
any troubleshooting periods forced by problems with the Equipment or
Circuit.
- Provide one ISDN line as directed by Fannie Mae for use in conjunction
with the Network Contingency referenced in Section 3.7.
- Provide a telephone near the area of the Equipment for the use by
Fannie Mae and/or its designee for maintenance and coordination
purposes.
ENVIRONMENTAL SPECIFICATIONS
- No Equipment shall be at any time installed in close proximity to any
potential damaging heat source.
- Credit Vendor shall at all times maintain the following temperature
ranges in the vicinity of the Equipment:
- Operating Temperature Range: 0 to 40 degrees Celsius (32-104
degrees Fahrenheit)
C-1
<PAGE>
- Nonoperating Temperature Range: -40 - 85 degrees Celsius (-40-185
degrees Fahrenheit)
- Operating Humidity Range: 5 to 95 percent noncondensing
POWER SPECIFICATIONS
- Input: 110 VAC
- Frequency: 50 - 60 Hz
- Consumption: 40 W maximum (135.5 BTU /hr.)
- Rating: 2.5A maximum
CABLE REQUIREMENTS
- Fannie Mae and/or its designee shall provide all cabling along with
the remainder of the Equipment. However, Credit Vendor shall be
required to provide all LAN cable and any cabling required to link the
modem provided as part of the Equipment with the POTS or ISDN lines.
C-2
<PAGE>
EXHIBIT D
CREDIT REPORT TRANSMISSION AND ACCESS MARKETING AGREEMENT
TERMS AND CONDITIONS RELATING TO A
TECHNICAL AFFILIATE'S PROVISION OF CREDIT REPORTS
1. DEFINITIONS.
1.1 "Acceptance Document" shall mean a Document which contains an
acceptance of (i) the terms contained in a Request Document, or (ii)
any new terms contained in a Rejection Document.
1.2 "Credit Report" shall mean any consumer credit report electronically
transmitted by Technical Affiliate to a Licensee or LOS End User via
the Systems upon such Licensee's or LOS End User's request (including
reissued consumer credit reports), and references to a Credit Report
shall be construed to include any creditworthiness scores transmitted
by Technical Affiliate.
1.3 "Credit Vendor" shall mean that entity through which Technical
Affiliate obtains access to the Systems.
1.4 "Document" shall mean a particular electronic transmission of data
and/or information, including a Credit Report, via the Systems in any
transaction set or transmission format Fannie Mae may from time to
time approve for use with the Systems.
1.5 "Incident" shall mean any irregularity, error, problem or defect
resulting from an incorrect functioning of the Systems if such
irregularity, error, problem or defect renders the Systems incapable
of meeting the specifications thereof or causes incorrect functions to
occur.
1.6 "Licensed Software" shall mean the current release (in executable form
only) of Fannie Mae's software product known as Desktop
Underwriter(R), Desktop Originator(R) and Desktop Home Counselor(R),
as applicable, including any related diagnostic software, consisting
of machine-readable software designed to support and facilitate (i)
electronic processing of mortgage loan applications, and (ii) the
communication of data and Credit Reports between Technical Affiliate,
Credit Vendor, Licensees and LOS End Users. The term "Licensed
Software" shall also include any modifications, updates, enhancements
and releases provided to Technical Affiliate through Credit Vendor (in
executable form only) by or on behalf of Fannie Mae.
1.7 "Licensee" shall mean any party licensed by Fannie Mae to use
MortgageLinks(TM) and/or the Licensed Software, and that maintains a
direct, independent contractual relationship with Technical Affiliate.
1.8 "LOS End User" shall mean any individual or entity that is not a
Licensee, but nonetheless maintains a direct, independent contractual
relationship with one or more LOS Vendors and Technical Affiliate.
1.9 "LOS Vendor" shall mean a third-party loan origination software vendor
integrated with one or more of the Systems (by means of Fannie Mae's
service-based architecture or otherwise), and through the software of
which a Credit Report is requested and received by a Licensee and/or
LOS End User.
D-1
<PAGE>
1.10 "Marks" shall mean a party's registered or unregistered trade names,
trademarks, logos and service marks. Without limiting the generality
of the foregoing, Technical Affiliate acknowledges that Fannie Mae's
Marks include "Fannie Mae(R)," "MortgageLinks(TM)," "MORNET(R)" and
"MORNETPlus(R)," "Desktop Underwriter(R)," "Desktop Originator(R)" and
"Desktop Home Counselor(R)."
1.11 "MORNETPlus(R) Network" shall mean the value-added network operated by
Fannie Mae for the mortgage industry, and references to the
MORNETPlus(R) Network shall be construed to mean references to the
Specifications and the Licensed Software.
1.12 "MortgageLinks(TM)" shall mean the current release, in each instance,
of each application developed by Fannie Mae and accessible by various
means, including through the MORNETPlus(R) Network, that facilitates
the transmission and, where applicable, translation of products and
services, including Credit Reports, between and among Fannie Mae,
Technical Affiliate, Credit Vendors, Licensees and LOS End Users in a
flat file, ANSI-approved, X12 EDI format and/or other Fannie
Mae-approved transmission formats.
1.13 "Proprietary Information" of a party shall mean (i) information
disclosed by such party relating to product development strategy and
activity, corporate assessments and strategic plans, financial and
statistical information, accounting information, software, systems,
processes, formulae, inventions, discoveries, policies, guidelines,
procedures, practices, disputes or litigation, (ii) other
confidential, proprietary or trade secret information disclosed by
such party that is identified in writing as such at the time of its
disclosure, (iii) all other confidential, proprietary or trade secret
information disclosed by such party, which a reasonable person
employed in the mortgage industry would recognize as such, (iv)
information relating to such party's employees, contractors or
customers which, if released, would cause an unlawful or actionable
invasion of privacy, (v) any compilation or summary of information or
data that is itself Proprietary Information, and (vi) all Signatures
disclosed by such party. For purposes of this Exhibit D, information
shall be deemed to be disclosed by a party if such information is
disclosed by any of its affiliates, partners, officers, employees,
directors, agents, contractors, representatives, successors or
assigns.
1.14 "Rejection Document" shall mean a Document which contains a rejection
of the terms offered in a Request Document and may contain an offer of
different terms.
1.15 "Request Document" shall mean a Document which contains a Licensee's
or LOS End User's request for a Credit Report.
1.16 "Signature" shall mean an electronic identification consisting of
symbol(s) or code(s) specified from time to time by Fannie Mae through
Credit Vendor which shall be affixed to or contained in each Document,
and may be included in an electronic mail envelope in which such
Document is transmitted.
1.17 "Systems" shall mean MortgageLinks(TM) and the MORNETPlus(R) Network.
1.18 "Technical Affiliate" shall mean the credit reporting entity to which
Credit Vendor, in its sole discretion, provides access to the Systems;
provided, however, that the term "Technical Affiliate" shall not be
construed as implying any particular form of legal relationship
between Credit Vendor and such Technical Affiliate.
D-2
<PAGE>
2. TRANSMISSIONS.
2.1 Separate Agreement. Technical Affiliate shall maintain a separate
contractual relationship with each Licensee and LOS End User to which
Technical Affiliate transmits a Credit Report (the "Separate
Agreement"). Technical Affiliate may agree in any such Separate
Agreement to terms governing transactions with a Licensee or LOS End
User which are different from those set forth in Sections 2.2 or 2.3
of this Exhibit D.
2.2 Transmission of Documents. Technical Affiliate shall transmit (i) a
functional acknowledgement to a Licensee or LOS End User evidencing
the Technical Affiliate's receipt of a Request Document within the
time frames agreed upon with Credit Vendor, (ii) either an Acceptance
or Rejection Document to the Licensee or LOS End User within the time
frames agreed upon with Credit Vendor.
2.3 Acceptance and Performance. If an Acceptance Document is required for
the acceptance of a Document, a properly received Document shall not
give rise to any obligation unless and until the party initially
transmitting such Document has properly received in return an
Acceptance Document. In the event a Licensee or LOS End User desires
to accept new terms provided in a Rejection Document, such Licensee or
LOS End User shall transmit an Acceptance Document to Technical
Affiliate. Upon Technical Affiliate's final acceptance of any Credit
Report request as described herein, Technical Affiliate shall transmit
its Credit Report to such Licensee or LOS End User within time frames
agreed upon with Credit Vendor.
2.4 Proper Receipt. No Document shall give rise to any obligation until
properly received by the party to which the Document is transmitted.
Proper receipt of a Document shall occur when such Document is
delivered to the recipient. Whether or not proper receipt of a
Document has in fact occurred and the exact time at which proper
receipt of a Document occurs shall be determined by Fannie Mae by
reference to its Systems transaction records and applicable Systems
procedures. Such Fannie Mae determinations shall be conclusive and
binding on Technical Affiliate, LOS End Users and Licensees. Technical
Affiliate agrees not to contest any such Fannie Mae determination.
2.5 Grant of License. Technical Affiliate understands and agrees that in
providing a Credit Report to a Licensee or LOS End User upon its
request, Technical Affiliate effectively grants to such Licensee or
LOS End User a nonexclusive license to use, and to copy for such use,
any such Credit Report.
2.6 Transmission Standards; Notification. All Documents shall be
transmitted in accordance with any Fannie Mae-specified standards and
guidelines. If Technical Affiliate receives a Document in an
unintelligible or garbled form, it shall promptly notify the
transmitting Licensee or LOS End User (if identifiable from the
received Document) and Fannie Mae in a reasonable manner and within a
reasonable period of time.
2.7 Signatures. Technical Affiliate shall adopt a Signature to be affixed
to or contained in each Document transmitted by Technical Affiliate.
Technical Affiliate agrees that (i) any Licensee or LOS End User
Signature affixed to or contained in any Document shall be sufficient
to verify that the Licensee or LOS End User associated with the
Signature transmitted such Document, and (ii) any Technical Affiliate
Signature affixed to or contained in any Document shall be sufficient
to verify that Technical Affiliate transmitted such Document.
Notwithstanding any provision to the contrary in this
D-3
<PAGE>
Exhibit D, neither Technical Affiliate nor Fannie Mae shall disclose
the Signatures of either party or those of any Licensee or LOS End
User to any unauthorized person.
3. CHARGES FOR SERVICES.
Technical Affiliate shall invoice each Licensee and LOS End User directly
for any Credit Report delivered to and accepted by such Licensee or LOS End
User pursuant to a Separate Agreement. Fannie Mae shall not be obligated
to, and does not guaranty or otherwise ensure the payment of, or indemnify
the Technical Affiliate for the non-payment of, any such invoice.
4. TECHNICAL AFFILIATE WARRANTIES.
Technical Affiliate represents and warrants the following:
4.1 Authorization; No Litigation. Technical Affiliate possesses all
necessary rights and authorizations to enter into and perform under
this Exhibit D, and the intellectual property or other proprietary
Technical Affiliate interest forming the basis of any Credit Report is
not presently subject to any threatened, pending or actual litigation.
4.2 Non-Infringement. Technical Affiliate's development and transmission
of a Credit Report, and a Licensee's or LOS End User's use of such
Credit Report in accordance with the Separate Agreement, will not in
any way constitute infringement or other violation of any copyright,
trade secret, trade or service mark (whether or not registered),
patent, design right, proprietary information or any other
intellectual property rights or other rights of any third party.
4.3 Security. Technical Affiliate has established and will maintain
security procedures that are reasonably sufficient to ensure that (i)
all Document transmissions are authorized, and (ii) Documents are
protected from improper access. Technical Affiliate has taken all
necessary and reasonable action by instruction, agreement or otherwise
with its employees, VANs and other agents to fulfill its warranty
obligation under this Section 4.3.
4.4 Support Standards. All technical assistance provided hereunder shall
be performed in a timely and professional manner by qualified
Technical Affiliate personnel, and all such assistance shall conform
to industry standards for similar support services.
4.5 No Viruses. Technical Affiliate shall use all reasonable efforts to
ensure that each Credit Report and other Document shall be transmitted
free of all known bugs, viruses, so-called "time bombs" or other
functions, routines, devices or instructions designed or available to
create any unauthorized access to, or interruption in the functioning
of, the Systems or any Licensee or LOS End User system.
4.6 Compliance. Each Credit Report, and the provision of technical
assistance in connection with transmission of the same, shall comply
with all applicable laws, rules and regulations, and shall fully
conform to all commonly accepted standards and practices in the
industry. Technical Affiliate's use of the Systems shall comply with
all applicable laws, rules and regulations.
D-4
<PAGE>
5. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
5.1 Protection. All Proprietary Information disclosed by one party to the
other in the course of performing under this Exhibit D or to which the
other gains access in connection with this Agreement shall be deemed
to be the property of the disclosing party, or the appropriate
third-party licensor (or other third-party owner), as the case may be.
The receiving party agrees to (i) receive such Proprietary Information
in confidence, (ii) use reasonable efforts to maintain the
confidentiality of such Proprietary Information and not disclose such
Proprietary Information to third parties (except for the receiving
party's representatives, agents and contractors who have a need to
know, are under a duty of non-disclosure, and are acting for the sole
benefit of the receiving party), which efforts shall accord such
Proprietary Information at least the same level of protection against
unauthorized use and disclosure that the receiving party customarily
accords to its own information of a similar nature, (iii) use or
permit the use of such Proprietary Information solely in accordance
with the terms of this Exhibit D, and (iv) promptly notify the
disclosing party in writing of any loss or unauthorized use,
disclosure or access of the disclosing party's Proprietary Information
of which it becomes aware. The terms and conditions of this Exhibit D
shall be deemed to be the Proprietary Information of both parties, and
shall not be disclosed by either party without the prior written
consent of the other party. Each party agrees that it shall abide by
and reproduce and include any trademark, trade name, copyright or
proprietary rights notices, legends, symbols or labels which appear on
or in any Proprietary Information of the other party which it is
authorized to reproduce. Each party also agrees that it shall not
remove, alter, cover or distort any restrictive legend or proprietary
rights notice appearing on or in any Proprietary Information of the
other party.
5.2 Exclusions. The restrictions on disclosure set forth above shall not
apply when, and to the extent that the Proprietary Information (i) is
or becomes generally available to the public through no fault of the
receiving party (or anyone acting on its behalf); (ii) was previously
rightfully known to the receiving party free of any obligation to keep
it confidential; (iii) is subsequently disclosed to the receiving
party by a third party who may rightfully transfer and disclose such
information without restriction and free of any obligation to keep it
confidential; (iv) is independently developed by the receiving party
or a third party without reference to the disclosing party's
Proprietary Information; or (v) is required to be disclosed by the
receiving party as a matter of law, provided that the receiving party
uses all reasonable efforts to provide the disclosing party with at
least ten (10) days' prior notice of such disclosure if permitted by
applicable legal process, the receiving party discloses only that
portion of the Proprietary Information that is legally required to be
furnished pursuant to the opinion of legal counsel of the receiving
party, and the receiving party uses all reasonable efforts to obtain
confidential treatment of the disclosing party's Proprietary
Information. Notwithstanding the foregoing, neither party shall
disclose, or permit the disclosure of, the terms or conditions of this
Agreement without the prior written consent of the other party, except
(A) as provided in Section 5.2(v) above, (B) to the extent necessary
to permit the exercise of its rights or the performance of its
obligations under this Agreement, or (C) to seek advice from its
attorneys, accountants or other professional advisors.
5.3 Transmission Monitoring. Technical Affiliate consents to Fannie Mae's
interception, collection, use, reproduction, storage and review of any
Document (i) when any such Document relates to a loan purchased by
Fannie Mae with respect to which Technical Affiliate provides products
or services to Fannie Mae or on Fannie Mae's behalf, and/or (ii) to
facilitate (A) billing, (B) network maintenance, including, without
limitation, the diagnosis and correction of Incidents, (C) the
protection and security of the Systems, (D) compliance with applicable
law or valid legal process, or (E) Fannie Mae's
D-5
<PAGE>
collection, generation, storage, reproduction, and use of statistical
information for purposes of, among other things, measuring the use of
the Systems and/or any Credit Reports provided to, from, or between
Technical Affiliate and any Licensee or LOS End User. Except as
required by law or by valid legal process, Fannie Mae shall not,
without Technical Affiliate's consent, specifically identify Technical
Affiliate in association with such statistical information. In no
event shall Fannie Mae market, distribute or otherwise share with any
third party any Document intercepted, reproduced, stored, accessed or
otherwise used under Section 5.3(ii). However, in connection with such
interception, collection, reproduction, storage or usage, Fannie Mae
shall have the right to remove any Document the content of which
Fannie Mae deems to be in violation of law or any term or condition
set forth in this Exhibit D. Notwithstanding the foregoing, Fannie Mae
shall have no obligation to remove, screen, police, edit or monitor
any Document.
5.4 Injunctive Relief. Each party acknowledges that a party's breach of
the provisions of this Section 5 is likely to cause irreparable injury
to the other party for which the other party will have no adequate
remedy at law. Accordingly, each party consents to the entry of
injunctive relief against it to prevent or remedy any breach of this
Section 5.
6. INDEMNIFICATION.
Technical Affiliate shall indemnify and hold harmless Fannie Mae and its
affiliates, partners, officers, employees, directors, agents, contractors,
representatives, successors and assigns, as such, from and against any
claims, actions, losses, damages or other liabilities that arise out of or
result from any third party claim relating to (i) any dispute or alleged
dispute between Technical Affiliate and a Licensee, LOS End User or other
third party relating to any material, product or service sold or
distributed in connection with the Systems, including, without limitation,
any Credit Report, (ii) any breach by Technical Affiliate of any covenant,
representation or warranty set forth in this Exhibit D or otherwise, (iii)
any irregularity, error, problem or defect occurring on the Systems which
is caused by Technical Affiliate, and/or (iv) any defamatory or illegal, or
allegedly defamatory or illegal, material transmitted across the Systems by
Technical Affiliate (or any person or entity that gains access to the
Systems through Technical Affiliate pursuant to this Exhibit D or
otherwise).
7. VALIDITY; ENFORCEABILITY.
7.1 Intent of Parties. The terms and conditions of this Exhibit D have
been agreed upon by the parties to evidence their mutual intent to
facilitate the purchase and sale of Credit Reports through the
electronic transmission and receipt of Documents by and between
Technical Affiliate, LOS End Users, LOS Vendors and Licensees
utilizing the Systems. Except as otherwise required herein, the
substantive terms of such purchases and sales shall be generally
governed by other agreements between Technical Affiliate and any given
Licensee or LOS End User, including, without limitation, any Separate
Agreement(s).
7.2 Signed Documents. Any Document properly transmitted pursuant to this
Exhibit D shall be considered to be a "writing" or "in writing"; and
any such Document when containing, or to which there is affixed, a
Signature (a "Signed Document") shall be deemed for all purposes (i)
to have been "signed" and (ii) to constitute an "original" when
printed from electronic files or records established and maintained in
the normal course of business.
D-6
<PAGE>
7.3 Course of Dealing. The conduct of Technical Affiliate, Credit Vendor,
LOS Vendor, LOS End Users, Fannie Mae and its Licensees in accordance
with this Exhibit D and any Separate Agreement or other agreement,
including the use of Signed Documents properly transmitted pursuant to
this Exhibit D and any Separate Agreement or other agreement, shall
evidence a course of dealing and course of performance accepted by
Technical Affiliate, Credit Vendor, LOS Vendor, LOS End Users, Fannie
Mae and its Licensees for the exclusive purpose of establishing the
enforceability and validity of contracts formed by the electronic
transmission and receipt of Documents.
7.4 No Contest of Validity, Enforceability or Admissibility. Technical
Affiliate agrees not to contest the validity or enforceability of
Signed Documents under the provisions of any applicable law relating
to whether certain agreements are to be in writing or signed by the
party to be bound thereby. Signed Documents, if introduced as evidence
on paper in any judicial, arbitration, mediation or administrative
proceedings, will be admissible as between the parties to the
controversy to the same extent and under the same conditions as other
business records originated and maintained in documentary form.
Neither party shall contest the admissibility of copies of Signed
Documents under either the business records exception to the hearsay
rule or the best evidence rule on the basis that the Signed Documents
were not originated or maintained in documentary form.
8. DISCLAIMERS; LIMITATIONS ON LIABILITY.
NEITHER CREDIT VENDOR NOR FANNIE MAE MAKES, AND EACH HEREBY EXPRESSLY
DISCLAIMS ANY AND ALL, WARRANTIES REGARDING THE SYSTEMS, WHETHER EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND WARRANTIES ARISING
FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT DEROGATING THE
GENERALITY OF THE FOREGOING, FANNIE MAE AND CREDIT VENDOR SPECIFICALLY DO
NOT WARRANT THAT THE SYSTEMS OR ANY COMPONENT THEREOF WILL (I) PERFORM
WITHOUT INTERRUPTION OR ERROR, OR THAT ALL IRREGULARITIES, ERRORS, PROBLEMS
OR DEFECTS WILL BE CORRECTED, (II) MEET TECHNICAL AFFILIATE'S REQUIREMENTS,
OR (III) BE ACCESSIBLE FROM THE CONFIGURATION WHICH TECHNICAL AFFILIATE MAY
SELECT. ACCESS TO THE SYSTEMS DURING ANY BETA AND/OR PILOT TEST PERIOD IS
PROVIDED "AS IS." IN NO EVENT SHALL EITHER PARTY, FANNIE MAE, OR ANY OF
THEIR RESPECTIVE AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES, DIRECTORS,
AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, AS SUCH, BE
LIABLE FOR ANY PUNITIVE, EXEMPLARY, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR
SPECIAL DAMAGES UNDER OR IN CONNECTION WITH THIS EXHIBIT D, THE SYSTEMS OR
ANY CREDIT REPORT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
PROFITS, INTEREST, REVENUE, DATA OR USE, OR INTERRUPTION OF BUSINESS,
INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, WHETHER BASED UPON
CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, DUTY TO WARN AND
STRICT LIABILITY), WARRANTY OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN
IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY
EVENT, EXCEPT WITH RESPECT TO SECTION 4 HEREOF, THE TOTAL CUMULATIVE
LIABILITY OF EITHER PARTY, FANNIE MAE, OR ANY OF THEIR THIRD-PARTY
LICENSORS, AND THEIR RESPECTIVE AFFILIATES, PARTNERS, OFFICERS, EMPLOYEES,
DIRECTORS, AGENTS, CONTRACTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, AS
SUCH, TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY LOSSES, INCLUDING,
WITHOUT LIMITATION, CAUSES OF ACTION AND CLAIMS BASED UPON BREACH OF
CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, DUTY TO WARN AND
STRICT
D-7
<PAGE>
LIABILITY), BREACH OF WARRANTY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE
GROUNDS, UNDER OR IN CONNECTION WITH THIS EXHIBIT D, THE SYSTEMS OR ANY
CREDIT REPORT, SHALL NOT EXCEED THE COMPENSATION PAID BY TECHNICAL
AFFILIATE TO CREDIT VENDOR.
D-8