EXHIBIT 10.8
MASTER AGREEMENT
FOR
MARKETING, OPERATIONAL AND COOPERATIVE SERVICES
THIS AGREEMENT ("Agreement") for the performance of Marketing, Operational and
Cooperative Services is executed and made effective as of November 27, 2001 (the
"Effective Date"), among EQUIFAX CONSUMER SERVICES, INC., a Georgia corporation
with a primary place of business at 0000 Xxxxxxxxx Xxxxxx XX, Xxxxxxx, XX
30335("Equifax"), and INTERSECTIONS INC., a Delaware corporation with a primary
place of business at 00000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000, and CREDITCOMM
SERVICES LLC, a Delaware limited liability company with a primary place of
business at 00000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000 (Unless the context otherwise
requires, Intersections Inc. and CreditComm Services LLC are referred to herein
collectively as "Intersections").
WHEREAS, Intersections is engaged, among other things, in the business of
promoting, selling and providing consumer privacy and fraud prevention products
and services, including credit monitoring, notification, credit analysis, theft
of identity insurance, fraud consulting and related services; and
WHEREAS, Equifax is a consumer credit information company that maintains
databases of consumer credit information and provides such data and related
services to businesses and consumers; and
WHEREAS, pursuant to a certain Note Purchase Agreement dated as of November,
_____, 2001 among Intersections and CreditComm, as the issuers, and CD Holdings
Inc., an Affiliate of Equifax, as the Purchaser, (the "Investment Agreement"),
Equifax is concurrent with this agreement, loaning certain funds to
Intersections; and
WHEREAS, to further develop their relationship, the parties desire to provide to
each other certain marketing and operational support, and to collaborate in
exploring certain cooperative opportunities as described herein, and to perform
and assume the functions, responsibilities and tasks associated with such
marketing and operational support services.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1. Capitalized terms not defined herein shall have the meanings
set forth on Exhibit A hereto.
2. AGREEMENT TO PROVIDE SERVICES.
2.1. Intersections shall, subject to the terms and provisions of
this Agreement, provide Equifax with (i) Credit Watch (Offline)
Services as described on Exhibit B, and Credit Watch On-line Ordering
Services as described in Exhibit B-1 and (ii) such other services
as the Parties may from time to time mutually agree upon pursuant to
Sections 5 or 6 hereof (collectively, the "Intersections Services").
2.2. Equifax shall, subject to the terms and provisions of this
Agreement, provide Intersections with (i) Online Ordering for
Tri-Bureau Reports Services as described on Exhibit C and (ii) such
other specific services as the Parties may from time to time mutually
agree upon pursuant to Sections 5 or 6 hereof (collectively, the
"Equifax Services").
3. PERFORMANCE AND RESOURCES
3.1. Each Party agrees that its respective performance of the
Services, or any other obligation under this Agreement, shall at a
minimum (a) be performed for the other Party in a diligent, workmanlike
manner in accordance with generally accepted, industry standards
applicable to the performance of such Services, and (b) shall meet or
exceed each of the applicable Performance Standards set forth in the
Exhibit applicable to such Service, subject to any limitations, and in
accordance with the provisions of this Agreement.
3.2. Except as otherwise provided in the Agreement, Equifax and
Intersections, respectively shall each provide and administer, manage,
support, maintain and pay for all resources (including, without
limitation, personnel, hardware, software, facilities, services and
other items, however described) necessary or appropriate to provide,
perform and deliver the Equifax Services or the Intersections Services,
respectively, or in performing any other obligation as described in the
Agreement.
3.3. Each Party represents and warrants that it has, and during the
Term will have, and each of the employees and subcontractors that it
will use to provide and perform the Services has, and during the Term
will have, the necessary knowledge, skills, experience, qualifications,
rights and resources to provide and perform the Services in accordance
with the Agreement.
3.4. Each Party will have the right to change the location of the
activities associated with any Services with the prior written consent
of the other Party which consent shall not be unreasonably withheld.
3.5. The Parties covenant to timely and diligently cooperate to
effect the goals, objectives and purposes of the Agreement and to
facilitate the performance of their respective duties and obligations
under the Agreement in a commercially reasonable manner. Further, the
Parties agree to deal and negotiate with each other and their
respective Affiliates in good faith in the execution and implementation
of their duties and obligations under the Agreement. However, nothing
in this Agreement or Exhibit shall be construed as creating a
relationship in which either Party is the fiduciary of the other.
3.6. During the term of this Agreement, Equifax and Intersections
will permit employees and agents of the other reasonable access to its
premises if reasonably necessary for the Party to perform the Services
or otherwise perform under this Agreement. While on the premises of the
other, the employees and agents of the visiting Party shall abide by
the
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rules and regulations of the hosting Party. The visiting Party shall
indemnify, defend and hold the hosting Party harmless from and against
any and all damages, losses, costs and expenses suffered or incurred by
reason of damage to person or property caused by the gross negligence
or willful misconduct of its employees or agents while on the premises
of the hosting Party.
4. CUSTOMER SERVICE
4.1. For each Service, the Parties shall agree as to (i) the
elements of customer service to be provided, (ii) which party shall
provide the same, and (iii) the performance standards that shall apply
to such Customer Service. Such agreement shall be specified on the
applicable Exhibit.
5. CHANGES OR ADDITIONS TO SERVICES
5.1. Changes to Services. In the event that either Party wishes to
change the scope of a Service currently being provided, the requesting
Party's Project Executive or his or her designee shall submit a written
proposal to the other Party's Project Executive describing such desired
change or such additional Service. Such Party's Project Executive shall
review the proposal and reject or accept the proposal in writing within
a reasonable period of time, but in any event within thirty (30) days
after receipt of the proposal. The Project Executive may also request
that the Integrated Planning Team review the proposal within the
thirty-day (30) period and provide it with such additional information
as it requests. In the event that the proposal is rejected, the writing
shall include the reason for rejection. In the event that the proposal
is accepted, the parties shall mutually agree to terms of such change
and memorialize such by amending the applicable Exhibit pursuant to
Section 23 as applicable.
5.2. Additional Services. In the event that either Party wishes to
request that the other provide a service not currently provided
pursuant to this Agreement, such requesting Party's Project Executive
or his or her designee shall submit a written proposal to the other
Party's Project Executive and such proposal shall be considered
pursuant to the process and time frames set forth in subparagraph 5.1.
above. Any new Services to be performed pursuant to this Agreement
shall be memorialized in writing by the Parties by entering into an
Exhibit to this Agreement in substantially the form of Exhibit D-4.
6. AGREEMENT REGARDING CERTAIN COOPERATIVE OPPORTUNITIES
6.1. Cooperative Opportunities. Equifax and Intersections shall
cooperate in exploring the efficiency of pursuing the opportunities set
forth on Exhibits D (New Product Development Cooperation); D-1
(Extension Product Development); D-2 (Product Convergence Cooperation);
and D-3 (Marketing Channels Cooperation) (collectively the "Cooperative
Opportunities").
6.1.1. Commitment to Investigate. Each Party shall dedicate
an appropriate level of resources (as determined by the
respective Party, in its sole discretion) to investigate
the desirability of pursuing the Cooperative
Opportunities and may assign the Integrated Planning
Team to this function. The Parties shall (i) pursue
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each of the Cooperative Opportunities in the priorities
indicated by the "Commence Activity dates and the "Reach Go or
No-Go Decision" dates ("Decision Dates") set forth on Xxxxxxxx
X, X-0, X-0, and D-3, (ii) by the indicated Decision Dates
decide whether to terminate such project or continue to pursue
such project, (iii) if the decision is to continue to pursue
such project, jointly agree to the respective commitments of
each Party in a writing which will be added to this Agreement
as an Exhibit in substantially the form of Exhibit D-4, which
at a minimum shall include the following: (a) a description of
the service or product to be provided, (b) a description of
the obligations of each Party, (c) a determination of
ownership of the product or service, (d) how User Information
is to be treated, (e) a determination of the ownership of
customers relating to the Service, (f) a determination of the
applicability of privacy policies, (g) a license of any Marks
(h) a determination of ownership of any intellectual property
related to the Service and specifies any usage rights (i) how
costs incurred and revenues are to be allocated between the
Parties, (j) timetable for implementation, and (k) any other
specific requirements or additional terms applicable to the
Service and agreed to by the Parities.
6.2. No Other Obligation. Equifax and Intersections each
acknowledge and agree that (i) nothing contained in this Section 6 or
elsewhere in this Agreement obligates either Party to pursue any
Cooperative Opportunity beyond the specific limited obligations of
Section 6.1.1 and none is to be implied from any provision of this
Agreement; (ii) either Party may decide not to pursue any of the
Cooperative Opportunities; (iii) neither Party is obligated to enter
into any Exhibit or other Agreement with respect to any Cooperative
Opportunity and may in its absolute sole discretion choose not to; and
(iv) no obligation regarding any Cooperative Opportunity beyond those
specifically set forth in Section 6.1.1 exists and shall not exist
unless and until the Parties enter into a separate additional Exhibit
or other Agreement in writing executed by both Parties setting forth
such additional obligations with respect to such Cooperative
Opportunity.
6.3. Intersections' Business. Each of the Parties acknowledges and
agrees that the business as presently conducted by Intersections
presently includes the products, services and processes constituting
the Cooperative Opportunities identified on Exhibits D (New Product
Development Cooperation); D-2 (Product Convergence Cooperation); and
D-3 (Marketing Channels Cooperation).
6.3.1 Excluded Business. Each of the Parties acknowledges and agrees
that the business as presently conducted by Intersections does
not presently include the products and services constituting
Cooperative Opportunities identified on Exhibit D-1 (Extension
Product Development), and that the same do not, nor shall they
be construed to constitute, an agreed expansion of the
business as presently conducted by Intersections. If, and only
if, (i) Equifax agrees that it and Intersections shall pursue
any such Cooperative Opportunity and (ii) the Parties execute
any required exhibit or other written agreement indicating
their mutual agreement regarding such Cooperative Opportunity,
shall the business of Intersections include, or be deemed to
include, any such Cooperative Opportunity.
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6.4 Limitations. Notwithstanding any other provision of this
Agreement, Intersections agrees that if the Parties do not agree to
mutually pursue a Cooperative Opportunity identified in Group B of
Exhibit D (New Product Development Cooperation), or in Exhibit D-1
(Extension Product Development), Intersections shall not pursue such
opportunity without Equifax unless Equifax has given its consent in
writing to Intersections so pursuing such opportunity; provided,
however, that Intersections may pursue an opportunity included in Group
B of Exhibit D if it first presents to Equifax a written confirmation
(in a form reasonably satisfactory to Equifax) signed by a non-consumer
business customer requesting such product.
7. AGREEMENT REGARDING EQUIFAX CREDIT INFORMATION
7.1. Intersections shall use Equifax Credit Information as the sole
component of all of its existing and future one-bureau products that
require credit information, subject to the provisions of the Data
Agreement and the Credit Monitoring Agreement. In addition,
Intersections shall utilize Equifax Credit Information as one of the
two bureaus used in any of its dual bureau products, and as one of the
three bureaus used in any tri-bureau products requiring credit
information unless an Intersections client makes a specific request not
to include Equifax.
7.2. Simultaneously with entering into this Agreement,
Intersections and Equifax (or an Equifax Affiliate, shall enter into an
amendment to Agreement - Consumer Disclosure Service (the "Data
Agreement") in the form attached hereto as Exhibit E providing for
certain changes in the terms upon which Intersections receives Equifax
Credit Information.
7.3. Simultaneously with entering into this Agreement,
Intersections and Equifax (or an Equifax Affiliate) shall enter into an
agreement in a form substantially similar to that attached hereto as
Exhibit F (the "Credit Monitoring Agreement") pursuant to which Equifax
shall provide to Intersections Credit Monitoring Services, i.e., a
process whereby Equifax (or an Equifax Affiliate) monitors the credit
file of Intersections' customers and reports to Intersections specific
changes to the files which Intersections will then report to the
customer as a component of its monitoring products.
7.4. Intersections shall use its best efforts to transition all of
its existing one bureau and dual bureau reports products to use Equifax
Credit Information as its underlying component, not later than one
hundred and eighty (180) days after the Effective Date.
7.5. Intersections will on a monthly basis report to Equifax the
number of its one bureau and dual bureau report customers who have been
converted to Equifax and the number still to be converted.
7.6. Equifax will cooperate with Intersections in its transition
efforts including providing such reasonable assistance that
Intersections may request (subject to any legal or contractual
obligations restraining Equifax's actions).
8. AGREEMENT REGARDING EQUIFAX AUTHENTICATION SERVICES.
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8.1. Intersections shall use Equifax eIDverifier(TM) authentication
services as its exclusive online authentication service for all
websites maintained by it for the purpose of selling products, except
that Intersections may continue to utilize another service to
authenticate for the existing clients shown on Exhibit G.
9. AGREEMENT REGARDING WEBSITE HOSTING.
9.1. Simultaneously with entering into this Agreement,
Intersections and Equifax shall enter into a hosting agreement in a
form substantially similar to that attached hereto as Exhibit H whereby
Equifax shall provide webpage hosting services to Intersections on the
terms and for the fees set forth in such agreement.
10. FEES AND PAYMENT.
10.1. Fees. Intersections shall pay Equifax for all the Equifax
Services as described on the applicable Exhibits, and Equifax shall pay
Intersections for all the Intersections Services as described on the
applicable Exhibits, at the rates specified on each such Exhibit. In
addition, each Party shall pay to the other (i) any costs incurred by a
Party specifically required to be reimbursed/paid by the other Party,
(ii) any revenue share amount specified in this Agreement, and (iii)
any other amount agreed to by the parties to be paid.
10.2. Payments. The Parties shall render invoices monthly, as
applicable. All invoices submitted by either Party are due and payable
within thirty (30) days of the receipt of the invoice, subject to the
right of the Party receiving the invoice to withhold payment in the
event of a good faith dispute pursuant to Section 10.4. Late payments
shall accrue interest from the invoice date at the lesser of (i)
one-and-one-half percent (1 1/2%) per month and (ii) the highest rate
allowed by law. Subject to Section 10.4, if either Party fails to pay
any invoice within thirty (30) days after receipt of the invoice date,
and thereafter fails to make such payment within fifteen (15) days
after written notice from the invoicing Party of such failure, the
invoicing Party may, in addition to any other remedies available to it
under this Agreement, suspend performance of Services.
10.3. Credits. With respect to any amounts to be paid or reimbursed
by one Party to the other pursuant to this Agreement for any month, a
Party may, at its option, pay that amount to the other Party by giving
the other Party a credit against amounts otherwise payable. Any such
credit shall be clearly reflected on the invoice(s) submitted to the
other party for such month.
10.4. Remittances. Where any Service requires a Party to collect
funds on behalf of such other Party, the collecting Party shall (i)
duly collect all funds as agreed for the other Party, (ii) maintain
reasonable and customary accounting records showing the amounts
collected, any refunds or incomplete payments process, and (iii) pay
such amounts to the other Party in accordance with the timetable to be
agreed upon by the Parties and include with such payment a detailed
accounting with such payment.
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10.4.1 Remittances that are paid to a Party late shall be
subject to the interest rate set forth in Section 10.2 above,
which the collecting Party shall also pay to the represented
Party when remitting such collected funds.
10.5. Disputed Amounts. If a Party, in good faith, disputes any
amounts regarding the Services, or any other obligation under this
Agreement, such Party may withhold any such disputed amounts from any
amounts owed to the other Party pursuant to this Agreement, if the
problem giving rise to the dispute has not been resolved to the Party's
reasonable satisfaction by the time payment on such invoice is due. In
accordance with the resolution of the dispute, the Party shall pay to
the Party owed the amounts agreed upon to be paid pursuant to such
resolution. Regardless of any dispute, a Party shall remit to the other
the invoiced amount minus the disputed amount.
10.6. Taxes. Unless otherwise stated in an applicable Exhibit, the
costs and fees payable under such Exhibit shall be exclusive of any and
all sales, use, ad valorem, value added or similar taxes.
10.7. Additional Taxes. If an additional sales, use, privilege,
value added, excise, services or similar tax is assessed on the
provision of any of the Services, or any Deliverable relating to a
Service, however levied or assessed, the Party receiving the Service
shall be responsible for and pay the amount of any such tax. The Party
rendering the Service will add to any charges hereunder to which such
taxes apply, amounts equal to any such taxes, however designated or
levied, based upon such charges, or upon this Agreement or any Services
or items provided hereunder, or their use, and any such taxes or
amounts in lieu thereof shall be paid by the other Party in respect of
the foregoing. Invoices shall identify those Services that are subject
to tax.
10.8. Cooperation. The parties shall cooperate reasonably with each
other to determine accurately each Party's tax liability and to
minimize such liability to the extent legally permissible. To
substantiate any claimed exemptions, the Party claiming the exemption
shall supply to the other the appropriate exemption or resale
certificates.
10.9. Method of Payment. Unless otherwise stated in the applicable
Exhibit or otherwise agreed to by the parties, all amounts payable by
the parties for the services rendered by the other pursuant to this
Agreement shall be remitted in United States dollars in the form of a
wire transfer.
11. MANAGEMENT AND REPORTS
11.1. Integrated Planning Team. The Parties shall form and
participate in an Integrated Planning Team composed of three
representatives from each company for the following purposes: (i) to
provide leadership and direction for the relationship over the Term of
the Agreement; (ii) to perform the activities described in Section 6
regarding the Cooperative Opportunities, (iii) to participate in the
Dispute Resolution Process pursuant to Section 21, and (iv) to report
to Intersections and Equifax regarding each of the foregoing areas.
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11.1.1. The Integrated Planning Team shall meet periodically,
as shall be mutually agreed, to discuss issues that
arise in the performance of any Service or any other
obligation under this Agreement.
11.2. Project Executives and Managers. Prior to the Effective Date,
Intersections and Equifax will each designate a Project Executive to
whom all communications regarding the Parties' relationship under this
Agreement may be addressed and who has the authority to act for the
appointing Party and its subcontractors in connection with all aspects
of this Agreement.
11.3. Reports. Equifax and Intersections shall agree on the form of
reports that shall be provided with respect to the Equifax Services and
the Intersections Services and unless the parties otherwise agree, such
reports shall be described on each Exhibit with respect to the Service,
or obligation, to which it relates. In general, each Party will provide
reports to the other that reflect in detail (i) the quantities of
Services provided, (ii) revenues and cost associated therewith, and
(iii) evidence of compliance with any applicable performance criteria
or service level.
11.4. Use of Subcontractors. Each Party may engage subcontractors to
perform and deliver any part or portion of the Services. Each Party
shall remain primarily liable and obligated to the other Party for the
timely and proper performance of all of its obligations hereunder even
if such obligations are delegated to third-party subcontractors, and
for the proper and timely performance and actions of any person or
entity to which it delegates or subcontracts any such obligation.
12. OWNERSHIP OF WORK PRODUCT, TRADENAMES, AND TRADEMARKS
12.1. Ownership of Services. Except as otherwise provided herein or
in an Exhibit, or unless the Parties otherwise agree in writing, and
except for Confidential Information (which shall exclusively be
governed by Section 13) Equifax and Intersections, each acknowledges
and agrees that (i) each shall be the sole and exclusive owner of all
Intellectual Property relating to the Equifax Services, and the
Intersections Services, respectively. and (i) Marks (x) owned by the
Party as of the Effective Date, (y) created by it after the Effective
Date, or (z) assigned to it pursuant to Section 12.8,
12.1.1. No Transfer of Ownership. Nothing in this Agreement
is intended to transfer any ownership rights to any
Intellectual Property or Xxxx from one Party to another.
Title to and ownership of a Party's Intellectual
Property or Marks shall remain with the Party. Each
Party hereby acknowledges and agrees that it will not
use or apply to register any Intellectual Property
owned, or Xxxx used by the other Party, whether
registered or unregistered, or any other name, xxxx,
designation, logo, device or design similar to any Xxxx
of the other, except on Services and Deliverables
provided or produced for the other Party pursuant to
this Agreement and in accordance with the provisions of
this Agreement.
12.1.2. No Challenge to Ownership. Neither Equifax nor
Intersections will challenge the validity or ownership
of any Intellectual Property or Marks provided or
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originated by the other, nor assert any adverse claims of
ownership thereof, and each Party agrees that it will execute
and deliver to the other any and all documents necessary to
confirm the first Party's ownership rights therein
12.2. Ownership of Materials. The Parties shall agree with respect
to any Program Communications and Work Products to be produced pursuant
to this Agreement, which Party shall have and retain ownership and the
Intellectual Property rights (the nature and extent of such rights) in
any such Program Communications and Work Products that are created,
prepared or produced in connection with this Agreement and all such
Program Communications and Work Product shall remain the property of
the designated Party.
12.2.1. Any Program Communications and Work Products created,
prepared and produced jointly shall vest jointly, unless
the Parties otherwise agree in writing.
12.2.2. Notwithstanding Section 12.2.1, unless the Parties
otherwise agree in writing, any artwork, text, copy,
materials or original concepts of any kind that either
Party provides to the other ("Artwork"), whether for the
purpose of inclusion or use in the creation of the
Program Communications or Work Product or for any other
purpose, shall remain the exclusive property of the
providing Party, and Marks provided therein shall remain
the exclusive property of such Party. Each Party agrees
with respect to such Artwork and Marks, (i) that
consistent with the other Party may use any of its
Artwork or Marks incorporated into jointly produced and
owned Program Communications and Work Products as the
Parties have agreed such Party may use such Program
Communications and Work Products, (ii) a Party shall not
use the other Party's Artwork or Marks other than in
accordance with the terms of this Agreement, provided,
however, that Equifax understands that Intersections
works with credit grantors on marketing programs and
that certain materials developed for Equifax may be
adaptations of materials successfully used with such
other such programs, and materials developed for Equifax
may be adapted to such other programs.
12.3. Trademark Licenses. A Party may by including the specific
terms of such license in an Exhibit relating to a Service grant to the
other a non-exclusive license to use such of its Marks as it provides
to the other: (a) with respect to the Services to be performed pursuant
to such Exhibit and with respect to any Deliverables related thereto,
(b) on the Party's webpages in links to the other's websites in
connection with advertising such Services, (c) with respect to any
Cooperative Opportunity, as the Party's shall agree in writing pursuant
to Section 6, and (d) in any other manner approved in writing by the
owner of the Marks in connection with this Agreement.
12.3.1. Limitations. The licensee will use the Marks (i)
exactly in the form provided and in conformance with any
trademark usage policies or other directions provided to
such Party by the owner of the Marks, and (ii) only in
the United States of America and Canada. The licensee
will not take any action inconsistent with the owner's
ownership of the Marks, and any benefits accruing from
use of such Marks will automatically vest in the owner
of the Marks. The licensee will not form any combination
marks with the other Party's Marks.
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12.3.2. Product Identification and Labeling. The Parties will
agree as to each Service (including any related
Deliverables) to be provided hereunder, which Party's
Marks will apply to such Service. Where it is determined
that a Party's Marks shall be applied to a particular
Service, the same shall be indicated in the Exhibit
relating to that Service or otherwise in writing and the
terms of this Section 12 shall apply.
12.3.3. Termination of License. A Party may terminate any
trademark license granted in accordance with this
Section 12.3 with respect to one or more of its Marks,
if, in its sole discretion, the licensee's use of the
Marks tarnishes, blurs or dilutes the quality associated
with any of the Marks or the associated goodwill and
such problem is not cured within ten (10) days after
receipt of written notice of such complaint.
Alternatively, instead of terminating the license in
total, the owner may specify that the other Party may
utilize the Marks in a different manner, or, with
respect to Internet usage, that certain pages of the
licensee's website may not contain the Marks.
12.4. New Marks. In the event that pursuant to this Agreement, the
Parties agree to produce a new trade name or trademark to be associated
with a new product or service, the Parties shall in the Exhibit or
other writing memorizing the agreement regarding such new product or
service, indicate which Party shall have ownership of any such trade
names, trademarks, service marks or other associated intellectual
property.
12.5. Sublicensing Limits. No license rights granted pursuant to
this Agreement are sublicenseable. Notwithstanding the foregoing,
either Party may use third-party web hosts or web integrators, but all
actions or failures to act of the web hosts or web integrators, as the
case may be, that would be a breach of this Agreement, were the actions
or failures to act taken by the applicable Party, will be deemed a
breach of this Agreement.
12.6. No Other Licenses. Except as specifically provided herein or
in any Exhibit, neither Party grants to the other any right or license,
express or implied, in the other's intellectual property or Marks.
12.7. Survival. The provisions of this Section shall survive the
expiration or termination of this Agreement for any reason whatsoever,
and shall remain in full force and effect thereafter.
13. CONFIDENTIAL INFORMATION
13.1. Definition of Confidential Information. Each Party agrees that
all information supplied by one Party and its Affiliates and agents
(collectively, the "Disclosing Party") to the other ("Receiving Party")
including, without limitation, (i) source code, prices, databases,
hardware, software, programs, engine protocols, models, displays and
manuals, product plans and specifications, including, without
limitation, the selection, coordination, and arrangement of the
contents of such materials and (ii) any unpublished information
concerning research activities and plans, marketing or sales plans,
pricing or pricing strategies, operational techniques, strategic plans,
User Information, and unpublished financial information, including
information concerning revenues, profits and
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profit margins will be deemed confidential and proprietary to the
Disclosing Party, regardless of whether such information was disclosed
intentionally or unintentionally or marked as "confidential" or
"proprietary" ("Confidential Information").
13.2. Exclusions. Confidential Information will not include any
information or material, or any element thereof, to the extent any such
information or material, or any element thereof:
13.2.1. has been previously published or is published
hereafter, unless such publication is a breach of this
Agreement or a similar non-disclosure agreement;
13.2.2. was already known to the Receiving Party prior to
being disclosed by or obtained from the Disclosing Party
as evidenced by written records kept in the ordinary
course of business of or by proof of actual use by the
Receiving Party;
13.2.3. has been or is hereafter rightfully received by the
Receiving Party from a third person (other than the
Disclosing Party) without restriction on disclosure and
without breach of this Agreement; or
13.2.4. has been independently developed by the Receiving
Party.
13.3. Presumption. It will be presumed that any Confidential
Information in a Receiving Party's possession is not within exceptions
in subsections 13.2.2, 13.2.3, or 13.2.4 above, and the burden will be
upon the Receiving Party to prove otherwise by records and
documentation.
13.4. Treatment of Confidential Information. Each Party recognizes
the importance of the other's Confidential Information. In particular,
each Party recognizes and agrees that the Confidential Information of
the other is critical to their respective businesses and that neither
Party would enter into this Agreement without assurance that such
information and the value thereof will be protected as provided in this
Section 13.4 and elsewhere in this Agreement. Accordingly, each Party
agrees as follows:
13.4.1. The Receiving Party will hold any and all
Confidential Information it obtains in strictest
confidence and will use and permit use of Confidential
Information solely for the purposes of this Agreement;
13.4.2. The Receiving Party may disclose or provide access to
its responsible employees and/or Affiliates who have a
need to know and may make copies, of Confidential
Information only to the extent reasonably necessary to
carry out its obligations hereunder;
13.4.3. The Receiving Party currently has, and in the future
will maintain in effect and enforce, rules and policies
to protect against access to or use or disclosure of
Confidential Information other than in accordance with
this Agreement, including without limitation written
instructions to and agreements with employees and agents
to ensure that such employees and agents protect the
confidentiality of Confidential Information. The
Receiving Party expressly will instruct its employees
and agents not to use or to disclose Confidential
Information to third
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parties, including without limitation customers,
subcontractors or consultants, except in accordance with
the terms of this Agreement unless the Disclosing Party
has given its prior written consent to such disclosure;
13.4.4. Each Party, at its own expense, will take all steps,
including, without limitation the initiation and
prosecution of actions at law or in equity, necessary or
appropriate to prevent use or disclosure, and upon any
unauthorized disclosure further unauthorized disclosure
or use, of any Confidential Information received or
obtained by it except as expressly permitted by the
terms of this Agreement;
13.4.5. Except as otherwise provided in this Agreement,
neither Party will copy (other than regular backup
copies), modify, disassemble, reverse engineer or
decompile any of the other's Confidential Information,
including, its intellectual property;
13.4.6. Neither Party will make any use whatsoever at any
time of the other's Confidential Information except as
expressly authorized in this Agreement; and
13.4.7. The Receiving Party will notify the other immediately
of any unauthorized disclosure or use, and will
cooperate with the Disclosing Party to protect all
proprietary rights in and ownership of its Confidential
Information.
13.5. Compelled Disclosures. To the extent required by applicable
law or by lawful order or requirement of a court, governmental
authority or self-regulatory agency having competent jurisdiction over
the Receiving Party, the Receiving Party may disclose Confidential
Information, including User Information, in accordance with such law or
order or requirement, subject to the following conditions: As soon as
possible after becoming aware of such law, order or requirement and
prior to disclosing Confidential Information, pursuant thereto, the
Receiving Party will so notify the Disclosing Party in writing and, if
possible, the Receiving Party will provide the Disclosing Party notice
not less than five (5) business days prior to the required disclosure.
The Receiving Party will use reasonable efforts not to release
Confidential Information, pending the outcome of any measures taken by
the Disclosing Party to contest, otherwise oppose or seek to limit such
disclosure by the Receiving Party and any subsequent disclosure or use
of Confidential Information that may result from such disclosure. The
Receiving Party will cooperate with the Disclosing Party regarding such
measures. Notwithstanding any such compelled disclosure by the
Receiving Party, such compelled disclosure will not otherwise affect
the Receiving Party's obligations hereunder with respect to
Confidential Information so disclosed.
13.6. Return of Confidential Information. Upon the request of either
Party or upon the expiration or termination of this Agreement for any
reason, the Receiving Party will promptly (i) return or destroy, at the
Disclosing Party's option, all originals and copies of all documents
and materials it has received containing the Disclosing Party's
Confidential Information, (ii) deliver or destroy, at the Disclosing
Party's option, all originals and copies of all summaries, records,
descriptions, modifications, negatives, drawings, adoptions and other
documents or materials, whether in writing or in machine-readable form,
prepared by the Receiving Party, prepared under its direction, or at
its request from the documents
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and materials referred to in subparagraph (i); and (iii) provide a
notarized written statement to the Disclosing Party certifying that all
documents and materials referred to in subparagraphs (i) and (ii) have
been delivered to the Receiving Party or destroyed, as requested by the
Disclosing Party.
14. USER INFORMATION
14.1. Ownership. The Parties shall agree in writing with respect to
each Service, which Party shall be deemed the owner of the User
Information collected from Consumers purchasing or accessing of the
Service. The Parties may agree that due to the joint nature of the
Service, both parties shall jointly be the owners of such User
Information. Determinations relating to User Information shall be
included in the Exhibit relating to a Service.
14.2. User Privacy. The parties shall agree for each Service which
Party's privacy policy shall apply and may agree that compliance with
both Intersections' and Equifax' policies is required. At a minimum,
the Equifax Services and the Intersections Services shall comply with
any applicable law, including any applicable notice and opt out
requirements. Determinations relating to User Privacy shall be included
in the Exhibit relating to a Service and all User Information shall be
treated accordingly.
14.3. Treatment of User Information. Without limiting any other
warranty or obligation specified in this Agreement, and in particular
the confidentiality provisions of Section 13, during the term of this
Agreement and thereafter in perpetuity, Equifax and Intersections both
agree not to gather, store, or use any User Information belonging to
the other in any manner not agreed to by the owner of the User
Information and, each agrees not to disclose, distribute, sell, share,
rent or otherwise transfer any User Information to any third party,
except as expressly provided in this Agreement, or in any Exhibit, or
as the Party that owns the User Information may have expressly and
reasonably directed in advance in writing.
14.4. Retention of User Information. Except as expressly permitted
in this Agreement, a Party will not retain any User Information
belonging to the other Party for any period longer than necessary for
the retaining Party to fulfill its obligations under this Agreement. As
soon as the retaining Party no longer needs to retain such User
Information in order to perform the Services or any other obligation
under this Agreement, the retaining Party shall return such User
Information to the deemed owner of such information. Notwithstanding
the foregoing, either Party may retain User Information in aggregate
statistical form for a period of three (3) years following termination
of this Agreement.
14.5. Security of User Information. Each Party will maintain and
enforce safety and physical security procedures with respect to its
access and maintenance of User Information that are (a) at least equal
to industry standards for such types of locations, and (b) which
provide reasonably appropriate technical and organizational safeguards
against accidental or unlawful destruction, loss, alteration or
unauthorized disclosure or access of User Information and all other
data owned by a Party and accessible by the other Party under this
Agreement. Without limiting the generality of the foregoing, each Party
will take all reasonable measures to secure and defend its location and
equipment
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against "hackers" and others who may seek, without authorization, to
modify or access its systems or the information found therein without
its consent. Both parties will periodically test their systems for
potential areas where security could be breached. Both parties will
report to the other Party immediately any breaches of security or
unauthorized access to their respective systems that they detect or
become aware of. Both parties will use diligent efforts to remedy such
breach of security or unauthorized access in a timely manner.
14.5.1. All User Information must be stored in a physically
secure environment that protects it from unauthorized
access, modification, theft, misuse and destruction. In
addition, to the general standards set forth above, each
Party will maintain an adequate level of physical
security controls over its facility including, but not
limited to, appropriate alarm systems, fire suppression,
access controls (including off-hour controls) which may
include visitor access procedures, security guard force,
and video surveillance.
15. PROVISIONS RELATING TO NETWORKS AND SYSTEMS
15.1. Connectivity. The Parties acknowledge that one or more of the
Services may require the parties to establish connectivity between
their respective system networks. For any such connectivity or other
actions required by this Agreement that relate to a Party's network,
webpages or internet access, the following provisions shall apply
unless the Parties agree otherwise in writing.
15.2. Policies. Each Party shall deliver to the other copies of its
respective network and internet policies and shall comply with such
applicable policies when connecting to the other's network system,
except if any such policy conflicts with the terms of this Section 15,
the terms of this Section shall prevail and, the effected Party shall
adjust its practices to bring them in line with the terms of this
Section.
15.3. Internet Service Standards. Both parties shall, when
connecting to and or transmitting through the Internet is required to
provide a Service or other obligation hereunder, comply with the
Internet Service Standards attached hereto as Exhibit I.
15.4. No Disabling Devices or Viruses. Each Party will use its best
efforts to ensure that any device that it connects to the other's
network, server, or any system, or any deliverable that it provides to
the other that is intended to connect to any network, server, or system
of the other, shall not contain any program, routine, device, or other
undisclosed feature, including, without limitation, a time bomb, virus,
software lock, drop dead device, malicious logic, worm, Trojan horse,
or trap door that is designed to delete, deactivate, interfere with, or
that is intended to provide access or produce modifications not
authorized by the receiving Party (collectively, "disabling
procedures"). Such warranty is intended to apply regardless of whether
such disabling procedures are intended or authorized to be included in
such connection or deliverable by the receiving Party. A Party will
immediately notify the other if it becomes aware that any such
disabling procedures have been, or may have been, transferred to the
other's network, server, or other system, or may have been included in
any Deliverable.
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15.5. Content License. Subject to specific agreements to be
memorialized in an Exhibit, each Party hereby grants to the other a
non-exclusive license to use, reproduce, distribute, create derivative
works of, publicly perform, publicly display and digitally perform the
"Internet Content" (defined as all content or information including
without limitation any text, music, sound, photographs, video,
graphics, data or software, in any medium, provided by a Party to the
other Party for display on a Webpage or server, or transmitted via the
Internet in connection with providing a Service hereunder or in
conjunction with any other obligation hereunder). A Party will not
provide any Internet Content that: (a) infringes upon any intellectual
property or publicity/privacy right; (b) violates any law or
regulation; (c) is defamatory, obscene, harmful to minors or child
pornographic; (d) contains any viruses, Trojan horses, worms, time
bombs, cancelbots or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal information; or
(e) is materially false, misleading or inaccurate. A Party transferring
Internet Content shall promptly notify the Party receiving the Internet
Content if it discovers any mistakes, omissions, errors, viruses, or
other defects in the Internet Content and will promptly inform the
receiving Party of: (i) the date of discovery; (ii) the method of
transmission or causation; and (iii) the corrective action taken by the
transferring Party.
15.6. Ownership of Domain Names. Each Party will retain all right,
title and interest in and to, and ownership of, their own respective
domain names, and the other Party will not acquire any right, title, or
interest therein. Each Party acknowledges that the domain names will be
associated with the respective parties and/or their Affiliates and that
each Party will build up substantial goodwill in the domain names and,
accordingly, that the domain names will be a valid trademark and/or
service xxxx of the respective Parties and/or their Affiliates.
15.7. Cookies. Neither Party shall engage in the use of such files,
text, code, web bugs, GIFs or other items which track user behavior
("Cookies") on any server or webpages used to provide Services to the
other in any manner without the other Party's prior written consent. If
a Party does provide such written consent, it may place reasonable
conditions and restrictions on the use of such Cookies.
15.8. Export Controls. The Parties acknowledge that if any of the
Services or any related technical information, documents and materials,
are subject to export controls under the U.S. Export Administration
Regulations and/or the Parties will (i) comply strictly with all legal
requirements established under those controls; (ii) cooperate fully
with any official or unofficial audit or inspection that relates to
those controls conducted by the U.S. Export Administration or such
other governing body with jurisdiction over such matters; and (iii) not
export, re-export, divert or transfer, directly or indirectly, any such
item to countries that are embargoed by Executive Order without the
prior written authorization of Equifax and the U.S. Commerce Department
or such other governing body with jurisdiction over such matters.
16. ANNOUNCEMENTS, PUBLICITY AND SOLICITATION
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16.1. Announcements; Publicity. Subject to specific agreements
regarding advertising and marketing relating to a Service, to be
memorialized in an Exhibit, during the term and at all times after the
termination or expiration of this Agreement, neither Party shall make
any media release or other public announcement relating to or referring
to this Agreement or the Services provided under this Agreement without
the other's prior written consent. Except pursuant to the terms of the
Agreement including applicable Exhibits, neither Party shall acquire
any rights to use, and shall not use, without the other's prior written
consent, the terms or existence of this Agreement, the Marks of the
other, their Affiliates, employees, directors, shareholders, assigns,
successors or licensees: (a) in any advertising, publicity, press
release, client list, presentation or promotion; (b) to express or to
imply any endorsement of the services; or (c) in any manner other than
expressly in accordance with this Agreement.
16.2. No Advertising or Links. Neither Party shall include any
advertising, promotions, merchandising, or marketing services
(including, but not limited to, banners, links, marketing services,
promotions, product tie-ins, or product or service merchandising) to
third parties in or on any electronic connectivity, or webpage provided
to the other, without prior written consent from the other Party.
17. REPRESENTATIONS AND WARRANTIES
17.1. Mutual Representations and Warranties. Equifax, Intersections
Inc., and CreditComm Services LLC, each, respectively, represents and
warrants with respect to themselves as follows: (a) such Party is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction in which it is organized, and has the power and authority
to carry on its business as now being conducted, (b) such Party has the
financial resources, personnel and organizational resources to perform
its obligations under this Agreement and will notify the other of any
change in such Party's circumstances that would materially adversely
impact its ability to perform its obligations under this Agreement, (c)
there is no action, suit or proceeding before or by any court or
governmental agency or body or otherwise, now pending, or to the
knowledge of such Party, threatened against such Party or its property
that may result in a material adverse change in the condition,
financial or otherwise or business prospects of such Party, and (d)
this Agreement has been duly executed and delivered on behalf of such
Party and is a legal and binding obligation of such Party enforceable
against it in accordance with the terms of this Agreement except (i) as
the same may be limited by bankruptcy, insolvency, reorganization, or
other laws or equitable principles relating to or affecting the
enforcement of creditors' rights and (ii) that the availability of
equitable remedies including specific performance is subject to general
equitable principles applied at the discretion of a court.
17.2. Representations of Intersections. In connection with its
activities hereunder, Intersections Inc. and CreditComm Services LLC
(collectively referred to below as "Intersections") each represents and
warrants to Equifax that:
17.2.1. Intersections does and will continue to comply fully
with the all applicable statutes, rules and regulations in any
jurisdiction in which it offers and provides Intersections
Services, including without limitation the Fair Credit
Reporting Act;
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17.2.2. Intersections will comply with all the terms and
conditions set forth in this Agreement and will perform the
Intersections Services in accordance with the Performance
Standards set forth in this Agreement and any Exhibits;
17.2.3 Intersections has obtained all required third-Party,
governmental and regulatory licenses, registrations and
approvals as may be necessary for it to offer and provide the
Intersections Services under the terms of this Agreement;
17.2.4 Any Network Connectivity or Internet related activity
relating to any Intersections Service and any Internet Content
provided by Intersections under this Agreement, shall comply
fully with the provisions of Section 15 (Provisions Relating
To Networks and Systems) and Exhibit-I (Internet Service
Standards) and do not and will not infringe or violate the
intellectual property rights or any other rights of any nature
of any third party, or contain defamatory or indecent matter.
17.3. Representations of Equifax. In connection with its activities,
hereunder, Equifax represents and warrants to Intersections Inc and to
CreditComm Services LLC that:
17.3.1. Equifax does and will continue to comply fully with
all applicable statutes, rules and regulations in any
jurisdiction in which it offers and provides Equifax Services
including without limitation the Fair Credit Reporting Act.;
17.3.2. Equifax will comply with all the terms and conditions
set forth in this Agreement and will perform the Equifax
Services in accordance with the Performance Standards set
forth in this Agreement and any Exhibits;
17.3.3. Equifax has obtained all required third-party,
governmental and regulatory licenses, registrations and
approvals as may be necessary for it to offer and provide the
Equifax Services under the terms of this Agreement;
17.3.4. Any Network Connectivity or Internet related activity
relating to any Equifax Service and any Internet Content by
Equifax provided under this Agreement shall comply fully with
the provisions of Section 15 (Provisions Relating To Networks
and Systems) and Exhibit-I (Internet Service Standards), and
do not and will not infringe or violate the intellectual
property rights or any other rights of any nature of any third
party, or contain defamatory or indecent matter.
17.4. Intellectual property. Each Party represents and warrants that
it has good and clear title to all Marks that it may provide to the
other to use in connection with any Service or this Agreement and that
use thereof by the other Party pursuant to this Agreement, in
connection with the Services will not violate or infringe the rights of
any third party, including, without limitation, those rights related to
patent, trademark, or service xxxx infringement and unfair competition.
18. INSURANCE
18.1 Insurance to be Maintained by Both Parties. Intersections and
Equifax each agree to maintain insurance of the kinds and limits set
forth below:
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18.1.1 Workers' compensation coverage, including
occupational disease and employer's liability insurance, in
limits and with coverage as required by the applicable laws of
each jurisdiction in which it does business, but in no event,
with respect to employer's liability insurance, less than the
following limits:
(A) bodily injury by accident: $1,000,000 per
accident, and
(B) bodily injury by disease: $1,000,000 per
employee, and
(C) bodily injury by disease: $1,000,000 policy
Limit
18.1.2 Commercial general liability insurance which includes
coverage for premises and operations liability, independent
contractor liability, blanket contractual liability, cross
liability coverage, separation of insureds in amounts not less
than the following limits:
(A) $2,000,000 general aggregate,
(B) $2,000,000 bodily injury and property damage
combined single limit each occurrence.
18.1.3 Professional Liability insurance covering the
Services performed for Equifax and its customers with limits
of liability of not less than $1,000,000 each claim and
$1,000,000 aggregate.
18.1.4 Automobile Liability and Property Damage Insurance,
including coverage on owned, hired, non-owned automobiles and
loaned vehicles, with Bodily Injury and Property Damage limits
of not less than One Million Dollar ($1,000,000) per
occurrence combined single limit.
18.2 Each such policy shall be written on an occurrence basis,
except for the professional liability coverage which shall be written
on a claims made basis. Each policy shall contain a clause requiring
the insurance carrier to notify the Party which is not the policy
holder, Intersections or Equifax, respectively, not less than thirty
(30) days prior to the termination or material modification of any such
policy. Each Party shall provide to the other with its insurance
carriers' Certificates of Insurance that all insurance required is in
force.
18.3 Each Party shall have its insurance carrier or carriers
certify to the other Party that all insurance required by this
Agreement is in force, such certificates shall stipulate that the
insurance will not be canceled, unrenewed or substantially changed
without thirty (30) days' prior notice by certified mail to such other
Party which is not the policy holder. A Party shall, on request, permit
the other Party to examine its original insurance policies relating to
the insurance required by this Agreement.
18.4 Either Party may carry, at its own, respective expense, such
additional insurance as it may deem necessary or desirable. Neither,
Intersections nor Equifax shall be deemed to be relieved of any
responsibility arising under or related to this Agreement
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by the fact that it carries insurance, and no such responsibility shall
be deemed in any way limited by the fact of such insurance.
19. LIABILITY; INDEMNIFICATION
19.1. Intersections Indemnification. Intersections and CreditComm
Services Inc. jointly and severally agree to indemnify, defend and hold
harmless the Equifax and its directors, officers, employees and agents
(the "Affected Indemnitees") from and against any and all damage, loss,
liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses)
in connection with any and all actions or threatened actions
("Indemnifiable Losses") incurred or suffered by any of the Affected
Indemnitees arising from, related to or associated with (i) any claim,
complaint, action, proceeding, counterclaim or offset incurred in
connection with Intersection's provision of or failure to provide any
of the Intersections Services, or any feature thereof, including, but
not limited to, any claim by any third party arising out of the use of
or quality of any materials or Services provided by Intersections; (ii)
Intersections, its employees, officers, directors, subcontractors, or
agents failure to perform in accordance with any of the terms and
conditions of this Agreement, including but not limited to, breach of
any of the representations, warranties, and covenants made herein by
Intersections or any of its related parties; and (iii) any violation by
Intersections of applicable federal, state or local laws or
regulations, including but not limited to Federal Communications
Commission or Federal Trade Commission rules or regulations.
19.2. Equifax Indemnification. Equifax agrees to indemnify, defend
and hold harmless Intersections Inc. and CreditComm Services LLC
(hereinafter collectively "Intersections") their directors, officers,
employees and agents (the "Intersections Indemnitees") from and against
any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable
attorneys' fees and expenses) in connection with any and all actions or
threatened actions ("Indemnifiable Losses") incurred or suffered by any
of the Intersections Indemnitees arising from, related to or associated
with (i) any claim, complaint, action, proceeding, counterclaim or
offset incurred in connection with Equifax's provision of or failure to
provide any of the Equifax Services, or any feature thereof, including,
but not limited to, any claim by any third party arising out of the use
of or quality of any materials or Services provided by Equifax; (ii)
Equifax, its employees, officers, directors, subcontractors, or agents
failure to perform in accordance with any of the terms and conditions
of this Agreement, including but not limited to, breach of any of the
representations, warranties, and covenants made herein by Equifax or
any of its related parties; and (iii) any violation by Equifax of
applicable federal, state or local laws or regulations, including but
not limited to Federal Communications Commission or Federal Trade
Commission rules or regulations.
19.3. Insurers. No insurer or any other third-party shall be, by
virtue of the foregoing indemnification provisions, (i) entitled to a
benefit it would not be entitled to receive in the absence of such
provisions, (ii) relieved of the responsibility to pay any claims to
which it is obligated, or (iii) entitled to any subrogation rights with
respect to any obligation hereunder.
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19.4. Indemnification Process. The Party seeking indemnification
shall notify the indemnifying Party of any claim under this Article
within thirty (30) days (or such shorter period as may be required to
respond to a third party claim) after receipt of notice. A Party
required to indemnify the other Party under this Agreement shall have
no obligation for any claim under this Section if:
19.4.1. the indemnified Party fails to notify the
indemnifying Party of such claim as provided above, but
only to the extent that the defense of such claim is
prejudiced by such failure;
19.4.2. the indemnified Party fails to tender control of the
defense of such claim to the indemnifying Party; or
19.4.3. the indemnified Party fails to provide the
indemnifying Party with all reasonable cooperation in
the defense of such claim (the cost thereof to be borne
by the indemnifying Party) but only to the extent that
the defense of such claim is prejudiced by such failure.
19.5. Consent. The indemnifying Party shall have no obligation for
any claim under this Agreement if the indemnified Party makes any
admission or settlement regarding such claim without the prior written
consent of the indemnifying Party, which consent shall not be
unreasonably withheld.
19.6. Participation. The indemnified Party shall have the right (but
not the obligation) to participate in such defense or settlement, in
which event such indemnified Party shall pay its attorneys' fees In
connection with such participation.
19.7. CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER EQUIFAX OR
INTERSECTIONS, OR ANY OF THEIR RESPECTIVE AFFILIATES, HAVE ANY
LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR ANY OTHER
LEGAL OR EQUITABLE GROUNDS, FOR ANY PUNITIVE, CONSEQUENTIAL, INDIRECT,
EXEMPLARY, SPECIAL OR INCIDENTAL LOSS OR DAMAGE SUFFERED BY THE OTHER
ARISING FROM OR RELATED TO ANY SERVICE OR THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION, LOSS OF PROFITS, INTEREST OR REVENUE, OR
INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN INFORMED OF OR
MIGHT OTHERWISE HAVE ANTICIPATED OR FORESEEN THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES. NOTWITHSTANDING THE FOREGOING, ANY DAMAGES AWARDED
OR OBTAINED (WHETHER BY SETTLEMENT, COMPROMISE OR JUDGMENT) AS A RESULT
OF THIRD PARTY CLAIMS SHALL BE CONSIDERED DIRECT DAMAGES FOR PURPOSES
OF THIS AGREEMENT.
20. DISPUTE RESOLUTION
20.1. Procedure. Any dispute between the Parties either with respect
to the interpretation of any provision of this Agreement or with
respect to the performance by Intersections or by Equifax hereunder
shall be resolved as specified in this Section.
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20.1.1. Integrated Planning Team. A Party shall by written
notice to the other Party submit a dispute to the
Integrated Planning Team for resolution. Such written
request shall specify in reasonable detail (i) the
nature of the dispute, (ii) the approximate dollar
amount at issue, and (iii) the requested resolution.
20.1.2. The Integrated Planning Team shall meet (which may
via Conference call) as soon as possible, but not later
than ten (10) business days after the receipt of the
notice, and as often as necessary thereafter, as
mutually agreed to, to gather and furnish to each Party
information with respect to the matter in issue that is
appropriate and germane to its resolution.
20.1.3. The Integrated Planning Team shall discuss the
problem and negotiate in good faith in an effort to
resolve the dispute.
20.2. Project Executive. If the Integrated Planning Team does not
resolve the dispute within thirty (30) days after the date of receipt
by a Party of a notice of submission of a dispute to the Integrated
Planning Team for resolution, the members of the Integrated Planning
Team shall report to their respective Project Executives and the
dispute shall be remitted to the Project Executives for resolution. The
Project Executives shall discuss the problem and negotiate in good
faith in an effort to resolve the dispute within thirty (30) days after
the referral to them.
20.3. If the Project Executives do not resolve the dispute within
such thirty (30) day period referenced in Section 20.2 above, then the
Party who presented the dispute shall be free to pursue any other
remedies available to it.
20.4. Continued Performance. The Parties agree to continue
performing their respective obligations under the Agreement (including
the Exhibits and any Addendum) while any dispute is being resolved
unless and until such obligations are terminated or expire in
accordance with the provisions of the Agreement.
21. TERM; TERMINATION; SURVIVAL
21.1. Term. The term of this Agreement will begin as of the
Effective Date and will expire five (5) years from the Effective Date,
unless sooner terminated as provided below. This Agreement will renew
automatically for additional two-year terms, unless either Party
provides written notice to the other twelve (12) months prior to any
termination date that it wishes the Agreement to terminate and not
renew.
The date on which this Agreement terminates in its entirety by
expiration or otherwise shall be the "Termination Date".
21.2. Partial Termination. Notwithstanding Section 21.1 above,
either Equifax with respect to an Intersections Service, or
Intersections with respect to an Equifax Service, as the recipient of a
particular Service, may, at its option, upon no less than sixty (60)
days prior written notice to the other (or such other period as the
parties may mutually agree in writing), direct the other to discontinue
such Service. In the event of any termination with respect to one or
more, but less than all, Services to be provided hereunder, this
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Agreement will continue in full force and effect with respect to any
Services not terminated.
21.3. Partial Termination Due to Breach. Notwithstanding Section
21.1 above, either Equifax or Intersections, as the provider or
recipient of a particular Service, may terminate a particular service
being provided under an applicable Exhibit if the other Party
materially breaches any of the terms hereof or of such applicable
Exhibit and such breach is not cured within thirty (30) days after
written notice of breach is delivered to the breaching Party; provided,
however, that if the breach is not capable of being cured within such
thirty (30) day period and the breaching Party is proceeding to cure
the breach with reasonable diligence, and has provided prior to the end
of such thirty-day period written notice to the other Party detailing
its efforts to cure the breach and when it anticipated completion of
the cure, the cure period shall be extended an additional thirty (30)
days.
21.4. Termination. Notwithstanding Section 21.1 above, this
Agreement may be terminated in its entirety in accordance with any of
the following:
21.4.1. By Agreement. Upon written agreement of the parties;
21.4.2. Material Breach. By either Intersections or Equifax
for material breach by the other of any of the terms
hereof if the breach is not cured within thirty (30)
days after written notice of breach is delivered to the
breaching Party; provided, however, that if the breach
is not capable of being cured within such thirty (30)
day period and the breaching Party is proceeding to cure
the breach with reasonable diligence, the cure period
shall be extended an additional thirty (30) days;
21.4.3. Insolvency. By either Intersections or Equifax, upon
written notice to the other if the other becomes
insolvent or makes an assignment of substantially all of
its assets for the benefit of creditors, or is placed in
receivership, reorganization, liquidation or bankruptcy;
21.4.4. Change of Control of Intersections. By Equifax, upon
written notice to Intersections pursuant to Section 3.8
(relating to Restricted Purchasers) of a certain Amended
and Restated Stockholders' Agreement dated as of
November ____, 2001 by and among, Intersections, CD
Holdings Inc., (an Affiliate of Equifax), and those
other stockholders of Intersections named as signatures
thereto; or
21.4.5. Force Majeure Event. Subject to Section 23, by either
Party due to a Force Majeure Event (as defined in
Section 23 below) impacting the other Party's
performance hereunder.
21.5. Upon any termination or expiration pursuant to this Section
21, Equifax and Intersections shall be compensated for all Services
performed through the Termination Date in accordance with the
provisions of this Agreement.
21.6. Upon termination or expiration of this Agreement (or an
Exhibit, as the case may be), all rights and obligations of the Parties
under this Agreement (or such Exhibit, as the
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case may be) will immediately cease and terminate (except for the
rights and obligations pursuant to SECTIONS 10, 12, 13, 14, 19, 20,
25.5, AND 25.8 and the definitions required thereby, which will survive
such termination or expiration), and neither Party will have any
further obligation to the other Party with respect to this Agreement
(or such Exhibit, as the case may be), except (i) for fees and
reimbursable expenses payable to the other Party accrued but unpaid at
the date of termination or expiration, and (ii) as set forth in the
provisions of this Agreement which are specifically designated herein
as surviving such termination or expiration.
22. AMENDMENT AND WAIVER.
This Agreement may not be altered or amended, nor may any rights hereunder be
waived, except by an instrument in writing executed by the Party or Parties to
be charged with such amendment or waiver. No waiver of any terms, provision or
condition of or failure to exercise or delay in exercising any rights or
remedies under this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, provision,
condition, right or remedy or as a waiver of any other term, provision or
condition of this Agreement.
23. FORCE MAJEURE.
Neither Party shall be liable for any default or delay in the performance of its
obligations hereunder (except for the payment of money) if and to the extent
such default or delay is caused, directly or indirectly, by acts of God,
governmental acts, accidents, wars, terrorism, riots or civil unrest, labor
disputes, fires, storms, earthquakes, floods or elements of nature, or any other
cause beyond the reasonable control of such Party, provided such default or
delay could not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the nonperforming Party through the use of
commercially reasonable alternative sources, workaround plans or other means
(individually, a "Force Majeure Event"). Upon the occurrence of a Force Majeure
Event, the nonperforming Party will be excused from any further performance or
observance of the obligations so affected for as long as such circumstances
prevail and such Party continues to use commercially reasonable efforts to
recommence performance or observance whenever and to whatever extent possible
without delay. Any Party so delayed in its performance will immediately notify
the other by telephone (to be confirmed in writing within five (5) days of the
inception of such delay) and describe at a reasonable level of detail the
circumstances causing such delay. If any Force Majeure Event substantially
prevents, hinders, or delays performance of any Service for more than fifteen
(15) consecutive days, then the Party receiving the Service may procure such
Services from an alternate source (whereupon the fees related to that Service
hereunder shall be reduced accordingly. If any Force Majeure Event continues for
more than sixty (60) consecutive days, then the Party receiving the Service may
terminate this Agreement as to the Effected Service as of a date specified by
such Party in a written notice of termination to the other Party.
24. AUDITS
Either Party may audit the other not more often than once in any twelve (12)
month period for the purpose of determining (i) compliance with the terms of
this Agreement, or (ii) the
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accuracy of xxxxxxxx and or remittances. A party (the "Auditing Party") may
initiate an audit by giving to the other Party no less than ten (10) business
days written notice of its request to audit. The Parties shall agree on the
dates, time and scope of the audit. Such audit may include, interviews of
relevant personnel and review of documentation. Any such audit will be performed
in coordination with the management of the Party being audited and shall occur
during the normal business hours of such Party. The Party being audited shall
provide all information reasonably requested by the Auditing Party in connection
with any such audit. The Auditing Party shall comply with all of the other
Party's rules and procedures regarding access to its premises and records.
25. GENERAL PROVISIONS
25.1. Assignment; Parties in Interest. Neither of the Parties hereto
may assign its rights or delegate any of its duties under this
Agreement without the prior written consent of the other Party. This
Agreement shall be binding upon, and shall inure to the benefit of, the
Parties hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement, express or implied, is intended to
confer any benefits, rights or remedies upon any person or entity other
than Equifax and the Equifax Indemnitees and Intersections and the
Intersections Indemnitees under Section 19 hereof.
25.2. Conflicts Between this Agreement and an Exhibit. As long as
any Exhibit remains in effect, the terms of this Agreement shall govern
such Exhibit. If any provision of an applicable Exhibit conflicts with
a provision of this Agreement, the provision of such Exhibit will
control; provided, however, that in no event shall the term for the
provision of any Service under this Agreement or an Exhibit extend
beyond the Termination Date. Obligations pursuant to separately
executed agreements, i.e., the Data Agreement, the Credit Monitoring
Agreement and the Hosting Agreement, shall be governed by the
respective terms of those respective agreements.
25.3. Applicability to Affiliates. Equifax and Intersections shall
each cause their Affiliates to (a) comply with this Agreement and the
Exhibits hereto and (b) perform the Services described on the Exhibits
hereto. From time to time after the date hereof, Equifax and
Intersections may change which of their Affiliates shall provide or
receive services hereunder, provided that such changes do not
materially change the nature of the Services being provided.
25.4. Independent Contractors. Each of Intersections and Equifax is
an independent contractor. Neither Party shall have any authority to
bind the other Party unless expressly agreed in writing. Nothing in
this Agreement shall be construed to create a partnership, agency or
employer-employee relationship between Intersections and Equifax.
25.5. Notices. All notices and communications under this Agreement
shall be in writing and shall be deemed to have been given (a) when
received, if such notice or communication is delivered by facsimile, or
hand delivery, (b) one (1) business day after recognized or overnight
courier, and (c) three (3) business days after mailing if such notice
or communication is sent by United States registered or certified mail,
return receipt requested, first class postage prepaid. All notices and
communications, to be effective,
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must be properly addressed to the Party to whom the same is directed at
its address as follows:
If to Equifax, to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Corporate Vice President
Fax: (000) 000-0000
with a copy to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
General Counsel
Fax: (000) 000-0000
If to Intersections, to: Intersections Inc.
00000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Chief Executive Officer
with a copy to: Intersections Inc.
00000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Chief Financial Officer
Either Party may, by written notice delivered to the other Party in
accordance with this Section 26.5, change the address to which delivery
of any notice shall thereafter be made. Notice given to Intersections
Inc. pursuant to this Agreement shall be deemed to have been equally
given to CreditComm Services LLC.
25.6. Entire Agreement. Except as set forth in the Second Addendum
to the Data Agreement referred to in Section 7.1.2 hereof, the Credit
Monitoring Agreement referred to in Section 7.1.13 hereof, and the
Hosting Agreement referred to in Section 9 hereof, each executed as of
the date hereof by the parties hereto, and the Agreement Regarding
Equifax Authentication Service referred to in Section 8 hereof, this
Agreement, including all Exhibits hereto, constitutes the entire
understanding of the parties hereto with respect to the subject matter
hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to such subject matter. All
Exhibits attached hereto are by this reference made a part of this
Agreement and are incorporated herein, and any reference herein to
"this Agreement" or "the Agreement" shall include any applicable
Exhibits.
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25.7. Severability. The provisions of this Agreement are severable
and should any provision hereof be void, voidable or unenforceable
under any applicable law, such provision shall not affect or invalidate
any other provision of this Agreement, which shall continue to govern
the relative rights and duties of the parties as though such void,
voidable or unenforceable provision were not a part hereof.
25.8. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Georgia, without regard
to the conflicts of law rules of such state. Notwithstanding the
foregoing, if all of the providers and recipients of services under a
particular Exhibit are residents of the same country (other than the
United States), this Agreement shall be construed in accordance with,
and governed by, the laws of such country with respect to such Exhibit
only.
25.9. Headings. The Section headings set forth in this Agreement are
included for administrative, organizational and convenience purposes,
and are not intended to affect the meaning of the provisions set forth
in this Agreement or to be used in the interpretation of this
Agreement.
25.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument, but
all of which together shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
EQUIFAX CONSUMER SERVICES INC. INTERSECTIONS INC.
By: _______________________________ By: _______________________________
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
CREDITCOMM SERVICES LLC
By: _______________________________
Name: _____________________________
Title: ____________________________
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ADDENDUM NUMBER TWO
TO
MASTER AGREEMENT FOR MARKETING,
OPERATIONAL AND COOPERATIVE SERVICES
THIS ADDENDUM NUMBER TWO ("ADDENDUM") to the Master Agreement for
Marketing, Operational and Cooperative Services dated as of November 27, 2001
(the "MASTER AGREEMENT") among Equifax Consumer Services, Inc., a Georgia
corporation ("EQUIFAX"), Intersections Inc., a Delaware corporation and
CreditComm Services LLC, a Delaware limited liability company, is made as of May
31, 2002. Intersections Inc. and CreditComm Services LLC are collectively
referred to herein as "INTERSECTIONS" and shall be jointly and severally
responsible for all obligations of Intersections hereunder. Capitalized terms
used herein and not otherwise defined shall have the meaning set forth in the
Agreement.
WHEREAS, the Agreement sets forth the terms and conditions on which the
parties are to provide specified services to one another and to their respective
Users; and
WHEREAS, the parties desire to provide similar services to customers of
third parties, initially including Capita] One Bank and certain affiliates,
under private labeling arrangements; and
WHEREAS, the parties intend to establish the terms and conditions on
which they will provide such similar services;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Private Labeling Services. Each private labeling service opportunity
proposed by either party shall be deemed a Cooperative Opportunity and shall be
promptly and diligently evaluated by the parties as such, but without reference
to the timing requirements of Section 6.1.1 of the Master Agreement. If the
parties agree to pursue any such Cooperative Opportunity, they shall document
such agreement in the form of a "PROJECT AGREEMENT" that (i) makes reference to
this Addendum, (ii) provides the terms and conditions set forth in clauses (a)
through (k) of Section 6.1.1 of the Master Agreement, provided that inapplicable
terms may be omitted, and (iii) includes as an annex the underlying agreement
for services to be provided to the third party. The Project Agreement for the
Capital One project is attached hereto as Exhibit A.
2. Master Agreement. Except as specifically set forth in this Addendum,
this Addendum supplements and is incorporated into, but does not alter or
supersede, the Master Agreement. Except as specifically set forth in a Project
Agreement, no Project Agreement shall supersede or amend this Addendum or the
Master Agreement. Each Project Agreement shall be deemed to be an Exhibit to the
Master Agreement for purposes thereof. Services provided by
1
Intersections pursuant to a Project Agreement shall be deemed to be
Intersections Services, and services provided by Equifax pursuant to a Project
Agreement shall be deemed to be Equifax Services, for all purposes under the
Master Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by their respective authorized representatives.
EQUIFAX, CONSUMER SERVICES INC. INTERSECTIONS INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
CREDITCOMM SERVICES, LLC.
By:
------------------------------
Name:
----------------------------
Title:
----------------------------
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