Exhibit 10.34
DealerTrack
Lender Agreement
(Xxxxx Fargo Bank, N.A.)
This DealerTrack Lender Agreement is made as of the thirty first day of August,
2001 (the "Effective Date") by and between XxxxxxXxxxx.xxx, Inc.
("DealerTrack"), with its principal place of business at 000 Xxxxxx Xxxx,
Xxxxxxxx Xxx Xxxx 00000, and Xxxxx Fargo & Company and any of its Affiliates
("Lender"), with its principal place of business at 000 Xxxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxxxx, XX 00000.
BACKGROUND
DealerTrack operates "XxxxxxXxxxx.xxx," an automated credit application entry,
routing and servicing system which (i) allows automobile dealers to input credit
applications and to transmit electronically such credit applications to lending
institutions, (ii) allows such automobile dealers to track the approval process
of such credit applications, and (iii) allows such lending institutions to
electronically transmit credit decisions back to such automobile dealers. In
addition, the DealerTrack service also allows dealers to review prospect
reports, dealer reserve statements, retail and lease rates, residual value
information and payoff quotes from subscribing lending institutions and such
other services provided by DealerTrack from time to time. Lender is a lending
institution that desires to subscribe to and use the DealerTrack service to,
among other things, electronically receive credit applications and transmit
credit decisions. Use of the DealerTrack service requires the development of an
interface between DealerTrack's computer and Lender's credit processing system
which permits credit applications to be received by Lender's credit processing
system and Lender's credit decisions to be transmitted to DealerTrack's
computer. Development of this interface requires the performance of certain
tasks by DealerTrack and the performance of other tasks by Lender. This
DealerTrack Lender Agreement sets forth (i) the respective responsibilities of
each party with respect to the development of the interface, and (ii) the terms
and conditions governing DealerTrack's operation of and Lender's subscription to
and use of the DealerTrack service.
TERMS AND CONDITIONS
IN CONSIDERATION OF the mutual covenants and agreements set forth herein,
DealerTrack and Lender, intending to be legally bound, agree as follows:
1. Definitions. As used in this Agreement, the following capitalized terms have
the indicated meanings:
a. "Acceptance Date" means the date upon which the Lender System is first
capable of interfacing with the Service to receive credit application
data from a DealerTrack Dealer, to transmit a credit decision back to
such DealerTrack Dealer, and to allow DealerTrack Dealers to view
credit application and contract status information. The Acceptance
Date does not apply to any use of the Lender System in a testing
environment.
b. "Affiliate" of a DealerTrack means any person or entity (i) that owns,
directly or indirectly, through one or more affiliates, at least a
majority of the voting capital stock of such party, or (ii) at least a
majority of whose voting capital stock is owned, directly or
indirectly, through one or more affiliates, by such party, or (iii) at
least a majority of whose voting capital stock is owned directly or
indirectly, through one or more affiliates, by another person or
entity that at such time also owns, directly or indirectly, through
one or more affiliates, at least a majority of the voting capital
stock of such party. "Affiliate" of Lender means a company which
directly or indirectly, currently or hereafter, controls, is
controlled by or is
under common control with Xxxxx Fargo & Company and includes, but is
not limited to, any company that is currently, or hereafter becomes,
directly or indirectly, a parent or subsidiary of Xxxxx Fargo Bank,
N.A. or a parent or subsidiary of Xxxxx Fargo & Company. A person or
entity shall be considered an Affiliate only so long as it continues
to satisfy the criteria for an Affiliate established in this Section
l(b).
c. "Agreement" means this DealerTrack Lender Agreement, as it may from
time to time be amended or modified by the mutual consent of the
parties, and all exhibits attached to this Agreement, as they may from
time to time be modified by the mutual consent of the parties.
d. "Data" means (i) credit application data encompassing the information
set forth on the credit application form(s) utilized by the Service,
as transmitted in electronic form by means of the Service by a
DealerTrack Dealer, (ii) notice of the credit decision relating to
such credit applications, as transmitted in electronic form by means
of the Service by Lender (or any Lender Affiliate), (iii) credit
application and contract status information, prospect reports, dealer
reserve status, retail and lease rates, residual value information,
payoff quotes, (iv) any third party data (e.g., value guide
information) which may be accessed or requested by means of the
Service, and other information that is provided by the Service.
DealerTrack may, from time to time and with prior written notice, add
additional data fields to, or as appropriate, delete certain data
fields from, the Service, provided that any additional or deleted data
fields do not affect the Lender's Interface Components. If the
additional or deleted data fields affect the Lender's Interface
Components, then the Lender has reviewed and approved the additions or
deletions, as provided in 4(c) below. Data entered on the Service in
such additional fields shall be included in the term "Data."
e. "DealerTrack Computer" means the computer(s) controlled and operated
by DealerTrack on which DealerTrack maintains the computer programs
supporting the Service.
f. "DealerTrack Dealer" means an automobile dealer or other automobile
credit originator that is a subscriber to the Service.
g. "DealerTrack Financial Institution" means a bank or other lending
institution which is a subscriber to the Service, including without
limitation Lender.
h. "DealerTrack Interface Components" means and consists of the
DealerTrack Interface Equipment Components and the DealerTrack
Interface Software Components.
i. "DealerTrack Interface Equipment Components" means the components of
the Interface Equipment for which DealerTrack is responsible as set
forth in the Interface Development Schedule.
j. "DealerTrack Interface Software Components" means the components of
the Interface Software for which DealerTrack is responsible as set
forth in the Interface Development Schedule.
k. "DealerTrack Marks" means trademarks, service marks, trade names,
domain names and corporate and brand identification and indicia,
including, without limitation, word marks, logos, designs and other
picture marks, phrases, jingles, composite marks, corporate,
commercial and institutional names or images, product designations and
identifications, whether registered or not, of DealerTrack or
DealerTrack's Affiliates.
l. "DealerTrack Site" means the DealerTrack site on the World Wide Web that is
owned, operated and/or controlled by DealerTrack or any DealerTrack
Affiliate that provides the Service as set forth in this Agreement.
m. "Documentation" means the system and user documentation for the Service
provided by DealerTrack to DealerTrack Financial Institutions generally, as
enhanced and/or modified by DealerTrack from time to time.
n. "Effective Date" means the date first set forth above when this Agreement
becomes legally binding upon the parties.
o. "Force Majeure Event" shall mean fire, flood, earthquake, elements of
nature or acts of God, acts of war, terrorism, riots, civil disorders,
rebellions or revolutions, strikes, lockouts or labor difficulties or any
other cause beyond the reasonable control of a party (except for
subcontractor defaults which do not result from such events).
p. "Interface" means and consists of the Interface Equipment and the Interface
Software, and establishes, by means of the Service, the capability for the
Lender Computer to receive Data from, and transmit Data to, the DealerTrack
Computer.
q. "Interface Development Schedule" means the written schedule attached hereto
as Exhibit C (as revised from time to time) developed and mutually agreed
upon by DealerTrack and Lender which sets forth the tasks and respective
responsibilities of the parties relating to the development of the
Interface, and the timeframes for accomplishing such tasks. The Interface
Development Schedule shall be in the form of the Interface Development
Schedule Exhibit attached to the Agreement, unless otherwise revised by
mutual agreement of the parties.
r. "Interface Equipment" means the DealerTrack Interface Equipment Components
and the Lender Interface Equipment Components.
s. "Interface Requirements Documents" means the document (as revised from time
to time) provided by DealerTrack to Lender describing the technical
requirements which the Lender Interface Software Components must meet in
order to allow Lender and Lender Affiliates to utilize the Service.
t. "Interface Software" means all software code developed in accordance with
the Interface Development Schedule and utilized by the parties, to permit
the electronic transmission of Data between the DealerTrack Computer and
the Lender System in a format that permits the Data to be (i) transmitted
from the Service into the Lender System for processing, and (ii)
transmitted from the Lender System back to the Service upon completion of
such processing. The Interface Software consists of the DealerTrack
Interface Software Components and the Lender Interface Software Components.
u. "Intellectual Property" means any intellectual property or proprietary
rights, including, without limitation, copyright rights (including rights
in audiovisual works), moral rights, trademarks (including logos, slogans,
domain names, trade names, service marks), patent rights (including patent
applications and disclosures), know-how, inventions, rights of priority and
trade secret rights, recognized in any country or jurisdiction in the
world.
v. "Lender Computer" means the computers) controlled and operated by Lender or
Lender Affiliates on which Lender or Lender Affiliates maintain the Lender
Software.
w. "Lender Interface Components" means and consists of the Lender Interface
Equipment Components, Lender's Interface Server and the Lender Interface
Software Components.
x. "Lender Interface Equipment Components" means the components of the
Interface Equipment for which Lender is responsible as set forth in the
Interface Development Schedule. The Lender Interface Equipment Components
consist of the physical connections and associated equipment between the
Lender's Interface Server and the DealerTrack Computer.
y. "Lender's Interface Server" means the computers) on which the Lender's
Interface Software is maintained. The Lender's Interface Server resides at
the site of the Lender and is connected to both the DealerTrack Computer
and the Lender System. The Lender's Interface Server is owned and operated
by the Lender or a Lender Affiliate.
z. "Lender Interface Software Components" means the components of the
Interface Software for which Lender is responsible as set forth in the
Interface Development Schedule.
aa. "Lender Marks" means trademarks, service marks, trade names, domain names
and corporate and brand identification and indicia, including, without
limitation, word marks, logos, designs and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional names or
images, product designations and identifications, whether registered or
not, of Lender or Lender's Affiliates.
bb. "Lender Site" means the Lender site or any other site on the World Wide Web
owned or operated by Lender in whole or in part, which URL, site content
and configuration are subject to change from time to time by Lender.
cc. "Lender Software" means, Lender's, and any Lender Affiliates' credit
underwriting software (whether internally developed, or licensed, by Lender
or Lender Affiliate) which processes and decisions credit applications
transmitted by means of the Service.
dd. "Lender System" means, collectively, the Lender Software, the Lender
Computer, and all operating or system software installed on the Lender
Computer.
ee. "Service" means the multi-lender Internet-based system used to link
DealerTrack Dealers with DealerTrack Financial Institutions to allow
submission and tracking of credit applications and the related loans and
leases associated with such credit applications to finance the purchase or
lease of Automobiles, to allow DealerTrack Financial Institutions to
provide information to DealerTrack Dealers regarding loans and leases
originated by such DealerTrack Financial Institutions through such
DealerTrack Dealers plus, as the context permits, all equipment, computer
programs, patents, trade secrets, designs, documentation, manuals and
specifications thereof or incorporated therein, including the DealerTrack
Interface Components, but not including the Lender System or the Lender
Interface Components.
ff. "Tax" or "Taxes" shall mean any net income, alternative or add-on minimum
tax, gross income, gross receipts, sales, use, ad valorem, franchise,
capital, profits, license, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, custom duty, transfer,
documentary or other tax, governmental fee or other like assessment or
charge of any kind whatsoever, including any obligation to contribute to
the payment of a tax determined upon a consolidated, combined or unitary
basis with respect to a group of corporations any information reporting or
back-up withholding
obligation, liability or penalty, together with any interest or any
penalty, addition to tax or additional amount imposed by any
governmental authority responsible for the imposition of any such tax.
2. Subscription to the Service. Lender hereby subscribes to the Service, and
DealerTrack agrees to provide the Service to Lender and Lender Affiliates
for the term of this Agreement, for use by Lender and Lender Affiliates in
accordance with the terms of this Agreement. As a prerequisite for Lender
and Lender Affiliates to use the Service, DealerTrack and Lender must
develop and implement the Interface in accordance with Section 3 below, and
maintain the Interface in accordance with Section 4 below. In addition to
the responsibilities of the parties set forth in Section 4 below relating
to maintenance and modification of the Interface, the responsibilities of
each party with respect to ongoing operation and use of the Service are set
forth in Sections 5 and 6 below.
3. Interface Development. With respect to the development of the Interface,
DealerTrack and Lender shall perform their respective responsibilities as
set forth in this Section 3.
a. Immediately after the Effective Date, both parties shall consult with
each other on a continuing basis and as reasonably necessary to
finalize the Interface Development Schedule, with the objective of
finalizing the Interface Development Schedule as soon as possible and
no later than 30 days after the Effective Date which will be attached
as Exhibit C. The form of the Interface Development Schedule sets
forth the respective responsibilities of each party relating to the
development, testing and acceptance of the Interface. The Interface
Development Schedule with respect to development, testing and
acceptance of the Interface for Lender, the parties have established
the date on which they shall commence work on their respective
responsibilities (the "Interface Development Schedule Commencement
Date") and the schedule for completion of such responsibilities. Both
parties shall proceed with their respective responsibilities as set
forth in the Interface Development Schedule in a diligent manner and
shall use commercially reasonable efforts to allocate such skilled
personnel and other resources to the project as shall be necessary to
complete the development of the Interface so that the Acceptance Date
occurs according to Exhibit C.
b. DealerTrack has either provided the Interface Requirements Document to
Lender under a separate Non-Disclosure Agreement between the parties,
or shall provide the Interface Requirements Document to Lender
following the Effective Date. Lender acknowledges that the sole
purpose for DealerTrack's disclosure of the Interface Requirements
Document to Lender is to allow Lender to develop and maintain the
Lender Interface Software Components and changes to the Lender System
in connection with Lender's use of the Service under the terms of this
Agreement. If the Interface Requirements Document was disclosed to
Lender under a separate Non-Disclosure Agreement, then such disclosure
is now governed by the terms of this Agreement, and the terms of such
Non-Disclosure Agreement with respect to the subject matter of this
Agreement are hereby superseded by the terms of this Agreement.
c. DealerTrack and Lender shall cooperate reasonably and in good faith
with respect to such issues that may arise from time to time in
connection with the development of the Interface, to the extent that
specific responsibility has not been designated to one party or the
other in this Agreement. The foregoing notwithstanding, unless
otherwise agreed in writing, DealerTrack shall not be required to
incur any expenses or costs in connection with any tasks which would
normally be performed by the Lender and the Lender seeks DealerTrack
to perform these tasks on the Lender's behalf. If Lender
requires DealerTrack to perform any such tasks and DealerTrack agrees,
the parties agree to negotiate in good faith the terms and related
costs (if any) associated with such tasks.
d. The parties shall use their best efforts to cause the performance
dates and the Acceptance Date to occur by the dates established in
Exhibit C.
4. Maintenance of and Modifications to the Interface. With respect to
maintenance of and modifications to the Interface, the parties shall
perform their respective responsibilities as set forth in this Section 4.
a. DealerTrack shall be responsible for maintaining the DealerTrack
Interface Components and the DealerTrack Computer so that, subject to
Lender's performance of its obligations under this Agreement, the
Lender System shall be capable of receiving Data from, and
transmitting Data to, the DealerTrack Computer.
b. Lender shall be responsible for maintaining the Lender Interface
Software Components and the Lender's Interface Server so that, subject
to DealerTrack's performance of its obligations under this Agreement,
the DealerTrack Computer shall be capable of receiving Data from, and
transmitting Data to, the Lender System.
c. In the event that DealerTrack at any time makes any generally released
modifications to the programs supporting the Service on the
DealerTrack Computer, and such modifications make changes to the
Interface necessary or advisable, DealerTrack shall give Lender at
least ninety (90) days prior written notice of the modifications,
unless otherwise required by applicable law.
i. With respect to changes to the Interface which are deemed
necessary by the parties: (i) DealerTrack shall be responsible,
at its expense, for making such necessary changes to the
DealerTrack Interface Components prior to releasing the
modifications to such programs supporting the Service, and (ii)
Lender shall be responsible, at its expense, for making the
necessary changes to the Lender Interface Components. DealerTrack
shall not implement such modifications to the programs supporting
the Service prior to end of the ninety (90) day notice period so
as to avoid any interruption in Lender's use of the Service. The
parties shall cooperate to ensure that such changes are made
properly and in a timely manner. The foregoing notwithstanding,
DealerTrack shall not be responsible for any interruption in
Lender's use of the Service caused by Lender's failure to
implement the appropriate changes to the Lender Interface
Components, except to assist Lender as reasonably appropriate in
implementing such changes.
ii. With respect to changes to the Interface which are deemed
advisable, but not necessary by the parties, Lender shall not be
required to implement such changes. If Lender elects to implement
the changes, upon the request of Lender, the parties shall
establish a mutually agreeable schedule for making such changes
to their respective components of the Interface, with the
objective of making such changes properly and in a manner that
allows Lender to begin to utilize the additional functionality
within a reasonable timeframe. However, DealerTrack shall not
implement such modifications to the programs supporting the
Service prior to end of the ninety (90) day notice period so as
to avoid any interruption in Lender's use of the Service. The
parties shall cooperate to ensure that such changes are made
properly and in a timely manner. The foregoing notwithstanding,
DealerTrack shall not be responsible for any interruption in
Lender's use of the Service caused by Lender's failure to
implement the appropriate changes to the Lender Interface
Components, except to assist Lender as reasonably appropriate in
implementing such changes. If Lender elects not to
implement the changes, DealerTrack shall not be responsible for
the inability of Lender to utilize additional functionality of
the Service that would be available with such changes.
5. Responsibilities of DealerTrack Relating to On-Going Operation of the
Service. In addition to DealerTrack's obligations under Section 3 and 4
above, with respect to the on-going operation of the Service, DealerTrack
shall perform its responsibilities as set forth in this Section 5.
a. The Service and the DealerTrack Site shall be hosted, operated and
maintained in accordance with the service levels set forth in Exhibit
A attached hereto and in accordance with such other performance
standards mutually agreed upon by the parties. Notwithstanding the
foregoing, DealerTrack shall be responsible for maintaining the
DealerTrack Service and Site and shall exercise commercially
reasonable efforts to ensure that the DealerTrack Service and Site are
operational so that the DealerTrack Service and Site are capable of
receiving Data from, and transmitting Data to, the Lender System.
DealerTrack shall exercise commercially reasonable efforts to ensure
that any changes to the DealerTrack Service and Site do not interrupt
(i) the transfer of Data between the Lender System and the DealerTrack
Service, or (ii) the processing of Data by the DealerTrack Service.
b. As part of the Service, and at all times during the term hereof,
DealerTrack shall maintain and enforce security procedures in
accordance with the security guidelines set forth in Exhibit A hereto
and in Section 19 hereof.
c. DealerTrack shall provide DealerTrack Dealers with customer and
technical support in accordance with the standards set forth in
Exhibit A attached hereto.
d. DealerTrack will use all commercially reasonable efforts to provide
appropriate resources including technical, implementation and program
management support to establish and maintain the DealerTrack Site and
the Service. DealerTrack will provide to Lender a contact list of
support, technical, marketing and program management representatives
that may be contacted by Lender, which will be updated and distributed
as necessary.
e. DealerTrack shall implement the necessary measurement, monitoring
tools and reporting procedures required to measure, monitor and report
DealerTrack's performance against the applicable service levels. Such
measurement, monitoring and reporting shall permit reporting at a
level of detail sufficient to verify compliance with the service
levels. Upon request and during normal business hours, Lender shall
have the right, but not the obligation, to audit such tools and
procedures and DealerTrack shall provide Lender with information and
access to such tools and procedures for purposes of verification.
f. As part of the Service, DealerTrack shall use, and shall cause its
subcontractors to use, commercially reasonable efforts to identify
ways to improve the service levels, including applying proven
techniques and tools applied by other similar services and/or websites
that would benefit Lender either operationally or financially.
g. DealerTrack shall implement necessary procedures and systems
capabilities, to the reasonable satisfaction of Lender, to ensure that
only those DealerTrack Dealers designated by Lender from time to time
are capable of transmitting and receiving Data to and from Lender by
means of the Service.
6. Responsibilities of Lender Relating to Use of the Service. In addition to
Lender's responsibilities under Section 3 and 4 above, with respect to
Lender's use of the Service, Lender shall perform its responsibilities in
accordance with this Section 6.
a. Lender shall be responsible for maintaining the Lender System and
shall exercise commercially reasonable efforts to ensure that the
Lender System is operational so that the Lender System is capable of
receiving Data from, and transmitting Data to, the DealerTrack
Computer. Lender shall exercise commercially reasonable efforts to
ensure that any changes to the Lender System do not interrupt (i) the
transfer of Data between the DealerTrack Computer and the Lender
Computer, or (ii) the processing of Data by the Lender Software.
b. Lender shall operate and manage the Lender System in such a manner as
to keep the Lender System from degrading the performance of the
DealerTrack Computer or otherwise adversely impacting the Service in a
manner that is inconsistent with proper operation of the Service. In
the event of such degradation or adverse impact, upon notification
from DealerTrack, Lender shall exercise commercially reasonable
efforts to terminate those processes causing such degradation or
adverse impact and shall implement any necessary changes to the Lender
System to prevent such degradation or adverse impact from reoccurring.
DealerTrack shall cooperate in good faith with Lender as reasonably
appropriate to assist Lender in connection with Lender's obligations
under this Section 6(b).
c. Lender acknowledges that access to the Service shall be restricted to
persons logging in with the proper user identification code/password.
Lender shall be responsible for limiting access to its user
identification code(s)/password(s) to authorized personnel and for all
Service related charges incurred under its user identification
code(s)/password(s), including the misuse of unauthorized use thereof.
Lender shall be solely responsible for any additional security
measures it wishes to take and DealerTrack shall have no liability for
any adverse impact that such measures may have on Lender's ability to
utilize and/or benefit from the functionality of the Service. Further,
DealerTrack shall not be liable for any losses or damages experienced
by Lender due to Lender's implementation of or failure to implement
security measures.
d. Lender shall be solely responsible for developing, implementing and
maintaining any and all back-up procedures and systems, redundant
systems and disaster recovery systems relating to the Lender System
and the Lender's Interface Server.
e. Lender shall cooperate with DealerTrack in accordance with
DealerTrack's standard procedures with respect to the enabling and
disabling of DealerTrack Dealers to transmit credit applications to
Lender by means of the Service.
7. Resources.
a. At all times during the term of this Agreement, each party shall
designate one person and one alternate to serve as its primary contact
and project authority with respect to issues relating to this
Agreement, and shall disclose the identities of such persons to the
other party. The project authorities and alternates will be authorized
to make all decisions and to request and receive services from the
other party with respect to this Agreement. Either party may change
the project authority and/or alternate at any time by written notice
to the other party.
b. At all times during the term of this Agreement, each party shall be
responsible for dedicating appropriate and sufficient resources to
meet its obligations under this Agreement.
8. Additional Services and Products. DealerTrack may, from time to time, offer
additional services and products ("Additional Products") by means of the
Service, other than those identified in this Agreement. DealerTrack shall
provide Lender with reasonable notice of the Additional Products as they
become generally available to DealerTrack Financial Institutions, including
the fees, charges and other terms applicable to the use of such Additional
Products. Lender shall have the option, in its sole discretion, whether to
use such Additional Products. In the event that Lender does use such
Additional Products, Lender agrees to use such Additional Products in
accordance with the applicable terms, and shall be responsible for and
shall pay to DealerTrack the additional applicable fees and charges, if
any, in accordance with the terms of this Agreement, as amended to include
such Additional Products.
9. Term and Termination
a. The terms of this Agreement shall begin on the Effective Date, and
shall continue for a period of two (2) years from the Acceptance Date
(the "Initial Term") unless sooner terminated as provided below. Upon
expiration of the Initial Term, unless terminated by either party by
notice of termination given not less than sixty (60) days prior to the
expiration of the Initial Term, this Agreement shall automatically
renew for successive one (1) year terms (each a "Renewal Term). During
any Renewal Term, either party may terminate this Agreement, effective
at the end of such Renewal Term by notice of termination given not
less than sixty (60) days prior to the expiration of such Renewal
Term.
b. This Agreement may be terminated by a party for cause immediately by
written notice upon the occurrence of any of the following events: (i)
if any license, registration, permit, authorization or approval for
the conduct of the other's business in the manner contemplated by this
Agreement is revoked or suspended and not reinstated within thirty
(30) days; (ii) if the other breaches any material provision of this
Agreement and fails to fully cure such breach within thirty (30) days
of written notice describing the breach; or (iii) if the other becomes
insolvent, or seeks protection under any bankruptcy, receivership,
trust deed, creditor's arrangement composition or comparable
proceeding, or if any such proceeding is instituted against the other
and not dismissed within thirty (30) days.
c. This Agreement may be terminated by Lender for cause immediately by
written notice if a bank regulatory agency having authority over
Lender issues an order or directive finding the Service provided to
Lender will cause Lender to be subject to regulatory sanction unless
such Service is modified and DealerTrack fails to modify such Service
in accordance with such order or directive within such period of time
as permitted by such regulatory agency.
d. This Agreement may be terminated by Lender without cause, upon thirty
(30) days prior written notice, in the event that any fee or charge
set forth in Section 10 hereof is increased or a new fee or charge is
imposed by DealerTrack,
e. DealerTrack agrees that upon termination of this Agreement, for any
reason, DealerTrack will within ten days after the date of termination
remove all of the Lender's Marks from the DealerTrack site and all
links from DealerTrack Site to Lender System.
10. Payments and Payment Terms. Lender agrees to pay DealerTrack when due the
fees and charges on the Schedule of Fees and Charges set forth in Exhibit B
attached hereto. Unless otherwise specified, DealerTrack shall invoice
Lender monthly for all fees and charges, payable thirty (30) days after
receipt of such invoice.
11. Licenses; Proprietary Rights.
a. In accordance with the terms of this Agreement and for the term
thereof, DealerTrack grants Lender a non-exclusive and
non-transferable license to use the Service in the United States for
its own internal business purposes (and those of Lender Affiliates),
and to permit its employees and agents (and employees and agents of
Lender Affiliates) to interact with the Service through remote
computer terminals solely for Lender's internal business purposes (and
those of Lender Affiliates). Lender shall have no right to make any
changes or modifications to the Service except as directed by
DealerTrack.
b. In accordance with the terms of this Agreement and for the term
hereof, DealerTrack grants Lender and Lender Affiliates a
non-exclusive and non-transferable license to use the DealerTrack
Marks for the sole purpose of identifying that it/they are licensed to
use the Service.
c. In accordance with the terms of this Agreement and for the term
hereof, Lender hereby grants to DealerTrack a non-exclusive,
non-transferable, royalty-free license to: (i) post the Lender Marks
on the DealerTrack Site, in combination with Lender's use of the
DealerTrack Services; and (ii) use the Lender Marks as a button(s) to
click on in order to link the DealerTrack Site to Lender System,
subject to the terms and conditions of this Agreement, including the
following conditions:
(1) DealerTrack may not modify, change, alter, delete from or add to
the Lender Marks, including, but not limited to, any change in
text, graphics, color, size or position. DealerTrack agrees that
it will not use any Lender Trademark designs except the Lender
Trademark designs provided to DealerTrack by Lender. DealerTrack
agrees that it will comply with Lender's published guidelines for
use of the Lender Marks.
(2) The Lender Marks shall be used solely to refer to the Lender
credit products and to indicate the location of the link between
DealerTrack and a Lender System and such Marks shall not be used,
placed or positioned in any manner that may cause a visitor to
believe that the Lender Marks refer to DealerTrack or any of
DealerTrack's products or services or that Lender endorses
DealerTrack's products or services.
(3) Lender retains all right, title and interest in and to the Lender
Marks and DealerTrack's rights to the Lender Marks are limited to
the express terms of the license in this Section 11 (c). No other
rights to the Lender Marks, express or implied, are granted to
DealerTrack by virtue of this Agreement and any and all uses by
DealerTrack of the Lender Marks shall inure to the benefit of
Lender.
(4) Lender may monitor DealerTrack's use of the Lender Trademark.
DealerTrack shall deliver copies of the initial DealerTrack Site
pages on which the Lender Marks are to appear to Lender for
review prior to publication. If there is a material change in the
content or functionality of a DealerTrack Site page, then
DealerTrack will submit the changed page to Lender for review
prior to publication. DealerTrack will not publish such pages
incorporating the Lender Marks without Lender's prior written
consent. Lender will make reasonable efforts to respond to
requests for such consents within five (5) Business Days after
Lender receives such requests.
d. DealerTrack retains all right, title and interest in the Service, the
Interface Requirements Document, the DealerTrack Interface Software
Components, the DealerTrack Computer and the DealerTrack Marks not
specifically granted to Lender under this Agreement. All revisions,
modifications and derivative works to the Service, the Interface
Requirements Document, the DealerTrack Computer and the DealerTrack
Interface Software Components developed by DealerTrack or any other
party, including all enhancements, upgrades, improvements or changes
to the Service, the Interface Requirements Document, the DealerTrack
Interface Software Components, and the DealerTrack Computer, but not
including the Lender Interface Components and the Lender System, will
be the sole and exclusive property of DealerTrack (the "DealerTrack
Property") and will be subject to all of the use and nondisclosure
restrictions which apply to the Service under this Agreement. Lender
agrees, upon DealerTrack's request and at DealerTrack's expense, to
assign to DealerTrack in writing any proprietary
interest that may be conferred upon Lender by law in any such
revisions, modifications and derivative works to the DealerTrack
Property. The terms of this provision shall survive termination of
this Agreement whether by expiration of time, operation of law or
other wise.
e. DealerTrack understands and agrees that Lender and Lender's licensors
are the exclusive owners of and holds and shall retain, all right,
title and interest in and to the Lender Intellectual Property, the
Lender System and the Lender Interface Components, including any and
all enhancements, upgrades, improvements, changes, modifications,
revisions or derivative works made to the same from time to time (the
"Lender Property"), and DealerTrack shall have no ownership or use
rights therein except as set forth in this Agreement. DealerTrack
agrees, upon Lender's request and at Lender's expense, to assign to
Lender or Lender's Licensor in writing any proprietary interest that
may be conferred upon DealerTrack by law in any such revisions,
modifications and derivative works to the Lender Property. The terms
of this provision shall survive termination of this Agreement whether
by expiration of time, operation of law or other wise.
f. Except as expressly permitted under this Agreement, Lender agrees that
neither it nor any Lender Affiliates will, at any time, without
written permission of DealerTrack, (i) copy, duplicate or grant
permission to the Service or any part thereof; or (ii) create, attempt
to create, or grant permission to the source program and/or object
program associated with any software component of the Service; or
(iii) decompile, disassemble or reverse engineer any software
component of the Service to develop functionally similar computer
software or services, or modify, alter or delete any of the copyright
notices embedded in or affixed to the copies of any components of the
Service; or (iv) grant permission to any third party to do any of the
foregoing.
g. If and to the extent that DealerTrack incorporates the software and/or
data of any third party in the Service, and use of such third party
software and/or data is not subject to the terms of a license
agreement directly between Lender (and any Lender Affiliate, if
applicable) and the third party licensor, the license of Lender and
all Lender Affiliates to such third party software and/or data shall
be defined and limited by the license to the Service granted by
DealerTrack under this Agreement. Furthermore, the use of any third
party data accessed by Lender with respect to the credit underwriting
processing of a credit application shall be strictly limited to the
credit underwriting processes related to that specific credit
application (e.g., if Lender accesses a value guide database in
connection with a credit application to determine the valuation of a
vehicle, that valuation may only be used in connection with the credit
underwriting of that specific credit application, and may not be used
for any other purpose). Lender specifically acknowledges that the
licensors of such third party software and/or data shall retain all
ownership rights thereto, and Lender agrees that it shall not (i)
decompile, disassemble or reverse engineer such third party software
for the purpose of revealing the proprietary information contained
therein, or otherwise use such third party software to develop
functionally similar computer software; or (ii) reproduce the data
therein for purposes other than those specifically permitted under
this Agreement; or (iii) modify, alter or delete any of the copyright
notices embedded in or affixed to such third party software or data;
or (iv) grant permission to any third party to do any of the
foregoing.
h. Lender acknowledges that the right or ability of DealerTrack to
license other lenders to use the Service or DealerTrack Marks is not
restricted in any manner by this Agreement, and that it is
DealerTrack's intention to license a number of other lenders to use
the Service and DealerTrack Marks under separate agreements. Lender
also agrees that DealerTrack shall be free to transmit credit
applications from any DealerTrack Dealers, at the DealerTrack Dealers'
request to other DealerTrack Financial Institutions and
non-subscribing lenders. Except as otherwise provided herein,
DealerTrack shall have no liability to Lender for any such action.
12. Representations and Warranties by DealerTrack.
a. DealerTrack has been duly organized and is validly existing as a
corporation under the laws of the state of its incorporation and is
duly licensed where required or is otherwise qualified in each state
in which it transacts business and is in compliance with such state's
applicable laws, rules and regulations.
b. DealerTrack has the requisite power, authority and legal right to
execute and deliver this Agreement, engage in the transactions
contemplated by this Agreement, and perform and observe those terms
and conditions of this Agreement to be performed or observed by it
hereunder. The person signing this Agreement has full power and
authority to bind DealerTrack. The execution, delivery and performance
of this Agreement, and the performance by DealerTrack of all
transactions contemplated herein, have been duly authorized by all
necessary and appropriate corporate action on the part of DealerTrack.
c. This Agreement has been duly authorized and executed by DealerTrack
and is valid, binding and enforceable against DealerTrack in
accordance with its terms, except that such enforcement may be subject
to bankruptcy (whether statutory, regulatory or decisional) now or
hereafter in effect relating to creditor's rights generally, and the
execution, delivery and performance by DealerTrack of this Agreement
does not conflict with any term or provision of (i) its certificate of
incorporation or by-laws; (ii) any law, rule, regulation, order,
judgment, writ, injunction or decree applicable to DealerTrack of any
court, regulatory body, administrative agency or governmental body
having jurisdiction over DealerTrack; or (iii) any agreement to which
DealerTrack is a party or by which its property is bound.
d. No consent, approval, authorization or order of, registration or
filing with, or notice to any governmental authority or court is
required under applicable law in connection with the execution,
delivery and performance by DealerTrack of this Agreement.
e. There is no action, proceeding or investigation pending or, to the
best knowledge of DealerTrack, threatened against it before any court,
administrative agency or other tribunal (i) seeking to assert the
invalidity of this Agreement; (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement; or (iii)
which could reasonably be expected to materially and adversely affect
its performance of its respective obligations under, or the validity
or enforceability of, this Agreement.
f. It has and shall maintain all regulatory approvals, authorizations,
licenses, permits and other permissions, consents and authorities
whatsoever needed to perform its obligations under this Agreement,
including, without limitation, the Service and the Site.
g. In connection with carrying out its obligations contained in this
Agreement, it shall comply at all times with all applicable federal
and state laws, rules and regulations, including, without limitation,
the Federal Truth in Lending Act, Regulation P, Regulation Z,
Regulation M, the Electronic Signatures in Global and National
Commerce Act, the Federal Fair Credit Reporting Act, the Federal Equal
Credit Opportunity Act, Regulation B and so-called "fair lending"
laws, rules and regulations. Also, its operations, business practices,
policies and procedures comply with applicable state and federal anti-
discrimination laws. DealerTrack shall ensure its operations and its
respective officers, employees, and agents are conducted in a manner
that do not have a material adverse impact on the reputation or the
business of Lender.
h. No product or other aspect of any technology, trade secret or other
Intellectual Property utilized by DealerTrack will infringe on or
violate any patent, copyright, trade secret, trademark or other
proprietary
right of any third party, or is libelous, defamatory or illegal and
DealerTrack further represents and warrants that it has all licenses,
approvals, or other authorizations required for any third party
Intellectual Property content on the DealerTrack Site, except for
content provided by or through Lender. The terms of this Section 12(h)
shall survive the termination of this Agreement, whether by expiration
of time, operation of law, or otherwise.
i. It shall use reasonable efforts to keep the DealerTrack Service and
Site free from intentionally injurious instructions (e.g. systems
"viruses") that are designed to modify, damage, delete, malfunction or
disable the Lender System or allow unauthorized access to or use of
the Lender System. The terms of this Section 12(i) shall survive the
termination of this Agreement, whether by expiration of time,
operation of law, or otherwise.
j. It shall use reasonable efforts to keep the DealerTrack Service and
Site free from code that could trigger a modification, shut down or
disablement of the Lender System or cause the Lender System to be
erased. The terms of this Section 12(j) shall survive the termination
of this Agreement, whether by expiration of time, operation of law, or
otherwise.
k. DealerTrack shall take all reasonable precautions necessary to ensure
that the DealerTrack Service and Site shall be safeguarded against
"hacker" intrusions.
1. DealerTrack shall operate and maintain the Service in a professional
manner and in a manner consistent with the highest industry standards.
m. DealerTrack shall not charge Lender any fee and/or charge for any
products or services provided to Lender under the terms of this
Agreement that are higher than the lowest fee and/or charge that
DealerTrack charges any other DealerTrack Financial Institution for
such products or services, except for any discount on a fee or charge
offered to a new DealerTrack Financial Institution for a period not to
exceed six (6) months after the Acceptance Date of such DealerTrack
Financial Institution. In the event that such fee and/or charge is
based on a sliding scale tied to a volume amount, Lender's fee and/or
charge shall be no higher than the lowest fee or charge applicable to
any DealerTrack Financial Institution for Lender's actual volume
amount.
n. DealerTrack has not entered and will not enter into any agreements or
activities that will or might interfere or conflict with the terms
hereof.
o. DealerTrack Service and Site shall be and currently is Year 2000
Complaint. As used herein, "Year 2000 Compliant" shall mean that the
Product accurately processes date/time data (including, but not
limited to, calculating, comparing, and sequencing) from, into, and
between the years 1999 and 2000 and leap year calculations (Year 2000
is a leap year). Furthermore, the Product, when used in combination
with other information technology, will accurately process date/time
data if the other information technology properly exchanges date/time
data with it. In the event that DealerTrack, Lender or any other
person or entity discovers a malfunction in the DealerTrack Services
or Site with respect to Year 2000 Compliance, DealerTrack at its
expense, shall make and deliver to Lender all fixes, corrections, and
changes necessary to cause the Dealer Track Services or Site to
perform in accordance with this warranty. Delivery shall be completed
within 30 days after the malfunction is first discovered by
DealerTrack or reported to DealerTrack. Any costs associated with
ensuring that the DealerTrack Services or Site is Year 2000 Compliant
shall be borne by DealerTrack and shall not result in any additional
charges to Lender. DealerTrack agrees that the Year 2000 warranty as
set herein shall survive termination or expiration of this Agreement
and, in the event there is a conflict with any provisions of
this Year 2000 warranty with any other term or condition of this
Agreement, this Year 2000 warranty shall control and supersede any
other term or condition. At Lender's request, DealerTrack shall
provide Lender with reasonable access to a designated Year 2000
technical contact with sufficient knowledge, experience and expertise
in the area of the Year 2000 problem who will be available to answer
questions and coordinate testing Year 2000 compliance.
P. THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 12 ARE
THE ONLY WARRANTIES MADE BY DEALERTRACK. SUCH WARRANTIES ARE IN LIEU
OF, AND DEALERTRACK EXPRESSLY HEREBY DISCLAIMS, ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, REGARDING THE SERVICE OR THE DEALERTRACK MARKS
INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING OR ANY PROVISION OF THE SERVICE LEVEL
STANDARDS AS DEFINED IN EXHIBIT A, DEALERTRACK SPECIFICALLY DOES NOT
REPRESENT OR WARRANT (i) THAT THE SERVICE WILL PERFORM WITHOUT
INTERRUPTION OR ERROR FREE, OR (ii) THAT IT MEETS LENDER'S
REQUIREMENTS, OR (iii) THAT ANY OR ALL OF THE DATA PROVIDED THROUGH
THE SERVICE IS ACCURATE OR COMPLETE.
13. Representation and Warranties by Lender.
a. Lender has been duly organized and is validly existing as a
corporation and is duly licensed where required or is otherwise
qualified in each state in which it transacts business and is not in
default of such state's applicable laws, rules and regulations.
b. Lender has the requisite power, authority and legal right to execute
and deliver this Agreement, engage in the transactions contemplated by
this Agreement, and perform and observe those terms and conditions of
this Agreement to be performed or observed by it hereunder. The person
signing this Agreement has full power and authority to bind Lender.
The execution, delivery and performance of this Agreement, and the
performance by Lender of all transactions contemplated herein, have
been duly authorized by all necessary and appropriate corporate action
on the part of Lender.
c. This Agreement has been duly authorized and executed by Lender and is
valid, binding and enforceable against Lender in accordance with its
terms, except that such enforcement may be subject to bankruptcy
(whether statutory, regulatory or decisional) now or hereafter in
effect relating to creditor's rights generally, and the execution,
delivery and performance by Lender of this Agreement does not conflict
with any term or provision of (i) its certificate of incorporation or
by-laws; (ii) any law, rule, regulation, order, judgment, writ,
injunction or decree applicable to Lender of any court, regulatory
body, administrative agency or governmental body having jurisdiction
over Lender; or (iii) any agreement to which Lender is a party or by
which its property is bound.
d. No consent, approval, authorization or order of, registration or
filing with, or notice to any governmental authority or court is
required under applicable law in connection with the execution,
delivery and performance by Lender of this Agreement.
e. There is no action, proceeding or investigation pending or, to the
best knowledge of Lender, threatened against it before any court,
administrative agency or other tribunal (i) seeking to assert the
invalidity of this Agreement; (ii) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement; or (iii)
which could reasonably be expected to materially and adversely affect
its
performance of its respective obligations under, or the validity or
enforceability of, this Agreement.
f. It has and shall maintain all regulatory approvals, authorizations,
licenses, permits and other permissions, consents and authorities
whatsoever needed to perform its obligations under this Agreement.
g. In connection with carrying out its obligations contained herein, it
shall comply at all times with all applicable federal and state laws
and regulations, including, without limitation, the Federal Truth in
Lending Act, Regulation P, Regulation Z, Regulation M, the Electronic
Signatures in Global and National Commerce Act, the Federal Fair
Credit Reporting Act, the Federal Equal Credit Opportunity Act,
Regulation B and so-called "fair lending" laws, rules and regulations.
Also its operations, business practices, policies and procedures
comply with applicable state and federal anti-discrimination laws.
Lender shall ensure its operations and its respective officers,
employees and agents are conducted in a manner that do not have a
material adverse impact on the reputation or the business of
DealerTrack.
h. No product or other aspect of any technology, trade secret or other
Intellectual Property owned by Lender will infringe on or violate any
patent, copyright, trade secret, trademark or other proprietary right
of any third party, or is libelous, defamatory or illegal. The terms
of this Section 13(h) shall survive the termination of this Agreement,
whether by expiration of time, operation of law, or otherwise.
i. It shall use reasonable efforts to keep the Lender System free from
intentionally injurious instructions (e.g. systems "viruses") that are
designed to modify, damage, delete, malfunction or disable the
DealerTrack Site or allow unauthorized access to or use of the
DealerTrack Site. The terms of this Section 13(i) shall survive the
termination of this Agreement, whether by expiration of time,
operation of law, or otherwise.
j. It shall use reasonable efforts to keep the Lender System free from
code that could trigger a modification, shut down or disablement of
the DealerTrack Site or cause the DealerTrack System to be erased. The
terms of this Section 13(j) shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or
otherwise.
14. Infringement Claims of Third Parties.
a. At its own expense, DealerTrack will defend Lender against any claim
by any third party alleging that the Service or use of the DealerTrack
Marks in accordance with Section 11 above infringes a patent,
copyright or other third party Intellectual Property rights in the
United States, and DealerTrack will pay all costs, damages and
attorneys' fees in any infringement action or negotiated by
DealerTrack in settlement; provided that Lender provides prompt
written notice to DealerTrack of such claim (if Lender has knowledge),
and allows DealerTrack sole control of, and fully cooperates with
DealerTrack in, the defense of such claims and all related
negotiations at DealerTrack's expense.
b. If the Service and/or the DealerTrack Marks are, or in DealerTrack's
opinion are likely to become, subject to a claim of infringement,
DealerTrack, at its option and expense, shall either (i) procure for
Lender and the Lender Affiliates the right to continue using the
Service and/or the DealerTrack Marks; or (ii) modify the Service
and/or the DealerTrack Marks to make it/them non-infringing in a
manner that does not materially impair its/their functionality. If
neither of the foregoing two options is reasonably available to
DealerTrack or if the modifications do not meet Lender's requirements,
then Lender may immediately terminate this Agreement by notice to
DealerTrack.
c. DealerTrack will have no obligation with respect to any actual or
threatened infringement claim based in whole or in part upon (i) the
Lender System or the Lender Interface Components, or (ii) Lender's (or
any Lender Affiliate's) failure to use the Service and/or the
DealerTrack Marks in accordance with this Agreement or the
Documentation.
d. This Section 14 states DealerTrack's entire obligation to Lender with
respect to actual or threatened third party infringement claims. The
terms of this Section 14 shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or
otherwise.
15. Confidentiality.
a. Confidential Information. "Confidential Information" shall mean
nonpublic information revealed by or through a party (a "Disclosing
Party") to the other (a "Receiving Party") including (a) information
expressly or implicitly identified as originating with or belonging to
third parties, or marked or disclosed as confidential, (b) information
traditionally recognized as proprietary trade secrets, such as, but
not limited to, Lender customer's (including potential Lender
customer's) names and data, business plans and procedures, accounting
methods, and security procedures (c) all forms and types of financial,
business, scientific, technical, economic, or engineering information
including patterns, plans, compilations, program devices, formulas,
designs, prototypes, methods, techniques, processes, procedures,
programs, or codes, whether tangible or intangible, and whether or how
stored, compiled, or memorialized physically, electronically,
graphically, photographically, or in writing, and (d) all copies
thereof. Confidential Information shall not include information which:
(a) is publicly available through no action of Receiving Party; (b)
has been in Receiving Party's possession independent of its
relationship with Disclosing Party; (c) has been developed by or
become known to Receiving Party without access to any Confidential
Information and outside the scope of any agreement with Disclosing
Party; or (d) is obtained rightfully from third parties not known to
be bound by an obligation of confidentiality. Notwithstanding anything
in this Agreement to the contrary, the Receiving Party shall comply
with all privacy and data protection laws, rules and regulations which
are or which may in the future be applicable to the Services. Without
limiting the generality of the preceding sentence, the Receiving Party
agrees that it will not use nor disclose to any other party any
nonpublic personal information which it receives from a financial
institution in connection with providing Services under this
Agreement, except to perform the co-branded services in accordance
with this Agreement. For purposes of this subsection, the terms
"nonpublic personal information" and "financial institution" shall
have the meanings set forth in Section 509 of the Xxxxx-Xxxxx-Xxxxxx
Act (P.L. 106-102) (15 U.S.C. Section 6809) and implementing
regulations thereof.
b. Treatment of Confidential Information. Receiving Party shall treat
such Confidential Information as strictly confidential with at least
the same degree of care as Receiving Party uses for its own
confidential information, and, shall not use, disclose, duplicate,
copy, transmit or otherwise disseminate or permit to be used,
disclosed, duplicated, copied, transmitted or otherwise disseminated
such Confidential Information at any time prior to or after the
termination of this Agreement except as expressly permitted under this
Agreement. In no event shall Receiving Party use Confidential
Information for its own benefit or that of any third party, nor shall
Receiving Party use Confidential Information to Disclosing Party's
detriment. Receiving Party shall use the Confidential Information for
the purposes authorized by this Agreement and for no other purpose.
Except in fulfillment of this Agreement, Receiving Party shall not
interpret, reverse-engineer, decompile, disassemble, debug or
otherwise use any part of any software to which it is given access by
or through Disclosing Party in connection with this Agreement, nor
shall Receiving Party access or generate corresponding higher level
code, access the logic intrinsic thereto; or aid, abide or permit
another to do so. Receiving Party shall not remove any copyright
notice, trademark
notice, and/or proprietary legend set forth on or contained within any
of the Confidential Information. Receiving Party shall promptly notify
Disclosing Party in writing of any unauthorized use or disclosure of
any Confidential Information.
c. Disclosure to Employees and other Parties. Receiving Party may
disclose Confidential Information to employees, independent
contractors, subcontractors, attorneys, accountants and investment
advisors ("Personnel"), only to the extent such Personnel have a need
to know such information for the purposes described in this Agreement
Receiving Party shall take all appropriate action, by instruction,
agreement or otherwise, with persons permitted access to Confidential
Information so as to enable the Receiving Party to satisfy its
obligations under this Section. Except as otherwise provided herein,
neither party shall disclose Confidential Information to any third
party unless (i) required by a federal or state agency or (ii)
required by law, including, but not limited to, by deposition,
interrogatory, request for documents, or similar process. In the event
that Receiving Party is required to disclose Confidential Information
for reasons enumerated in the prior sentence, Receiving Party shall
give Disclosing Party notice in a reasonable amount of time prior to
Receiving Party's disclosure of Confidential Information to allow
Disclosing Party to protect its proprietary interest therein.
d. Return of Confidential Information. Upon termination or expiration of
this Agreement, or upon Disclosing Party's earlier request, Receiving
Party shall promptly deliver to Disclosing Party all Confidential
Information, any copies or partial copies thereof and material
containing Confidential Information and shall purge any Confidential
Information from all computer and other data storage systems, and
certify to the Disclosing Party in writing that it has done so;
provided, however, that Receiving Party shall not be required to
return or destroy information which has been provided to (a) its board
of directors or (b) any governmental agency having jurisdiction over
the Receiving Party. Additionally, Receiving Party's legal department
may retain one copy of the Confidential Information and any such other
material for archival purposes, subject to the terms and conditions of
this Agreement. The obligations under this Agreement, however, shall
survive such occurrence.
e. Injunctive Relief. Each of the Parties acknowledges that any use or
disclosure of Confidential Information in violation of this Agreement
may cause irreparable injury to the Disclosing Party for which other
remedies at law would be inadequate, and each of the Parties agrees
that a Disclosing Party shall have the right to seek injunctive or
other equitable relief as may be necessary or appropriate to prevent
any use or disclosure of the Confidential Information in violation of
this Agreement, and may also exercise such other rights and remedies
as the Disclosing Party may have at law or in equity.
f. Survival. The terms of this Section 15 shall survive the termination
of this Agreement, whether by expiration of time, operation of law or
otherwise.
16. Indemnification.
a. Each party shall indemnify and hold harmless the other, and its
parent, affiliates, subsidiaries, directors, officers, employees and
agents, from and against any and all claims, demands, actions, suits,
losses, liabilities, damages, injuries, fines, penalties, costs and
expenses including, without limitation, reasonable attorneys' fees and
court costs arising out of:
(i) a material breach of this Agreement by the indemnifying party,
its affiliates, or any of their respective officers, directors,
employees or agents; or
(ii) negligence, willful or wanton behavior of the indemnifying party,
its affiliates, or any of their respective officers, directors,
employees, or agents.
b. The terms of this Section 16 shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or
otherwise.
17. Limitation Of Liability. In no event shall either party be liable to the
other for any indirect, incidental, special, exemplary or consequential
damages, arising out of this Agreement, including but not limited to lost
profits, business interruption, loss of business information, or cover,
even if such party has been advised of the possibility of such damages;
provided, however, that this limitation shall not apply to: (a) a breach of
Sections 12(h), 13(h), 14 or 15. The terms of this Section 17 shall survive
the termination of this Agreement, whether by expiration of time, operation
of law, or otherwise.
18. Audit Rights. DealerTrack agrees to maintain books and records relating to
this Agreement in accordance with its normal business practices.
DealerTrack shall require its outside host service provider to perform an
annual audit of DealerTrack's production and disaster recovery facility in
accordance with the AICPA's Statement of Accounting Standards No. 70, Type
2, "Special Purpose Report on Internal Accounting Control at Service
Organization" and the AICPA's Audit Guide, "Audit of Service-Center
Produced Records." DealerTrack shall provide Lender with a copy of the SAS
70 report prepared in connection with the audit within a reasonable time
after it prepares or receives the SAS 70 report. Upon reasonable prior
notice, during regular business hours, Lender may, at its expense and upon
five (5) Business Days prior notice, perform or arrange for an audit of
DealerTrack's operations and accounting relating to the products and
services provided hereunder during regular business hours. Such audits will
be performed no more frequently than once each calendar year and once for a
period of six months after the termination of this Agreement. Lender will
provide DealerTrack with a copy of each report prepared in connection with
any such audit within ten (10) calendar days after it prepares or receives
such report. The terms of this Section 18 shall survive the termination of
this Agreement, whether by expiration of time, operation of law, or
otherwise.
19. Information/Technology Control Policies.
a. Right to Examine Records. DealerTrack agrees that any regulatory
agency with supervisory responsibility for Lender shall have the right
for the purpose of determining DealerTrack's compliance with Section
19(d) below to examine all records and materials, use the equipment
and interview those employees of DealerTrack to the extent that such
officials deem necessary to protect the interest of depositors,
creditors or stockholders of Lender or as otherwise permitted under
applicable law, rule or regulation.
b. Audits. Upon Lender's request, DealerTrack shall allow Lender for the
purpose of determining DealerTrack's compliance with Section 19(d)
below to access any third party or internal audit reports of
DealerTrack relating to control policies and procedures prepared at
DealerTrack's request during the term of this Agreement.
c On-Site Reviews. During the term of this Agreement, DealerTrack also
shall allow Lender and its external auditors on Lender's behalf to
perform periodic on-site reviews of DealerTrack's physical site as
Lender deems reasonably appropriate for the purpose of determining
DealerTrack's compliance with
21. Taxes. DealerTrack shall be responsible for the payment of all Taxes levied
or imposed on or with respect to sales of goods or services by DealerTrack
in connection with the Service or the DealerTrack Site.
22. Insurance. DealerTrack, within five (5) business days after the execution
of this Agreement, shall procure and maintain, at its own expense, the
required insurance of the kinds and limits enumerated hereunder, with
companies acceptable to Lender. Xxxxx Fargo & Company and any and all
Affiliates as their interest may appear shall be named as an additional
insured under DealerTrack's Commercial General Liability insurance policy.
DealerTrack may carry, at its own expense, such additional insurance as it
may deem necessary. DealerTrack shall not be deemed to be relieved of any
responsibility by the fact that it carries insurance. The required
insurance and limits are as follows:
a. Errors & Omissions Liability Insurance covering the design,
development, maintenance, operation of the Services, and anything
incidental thereto, for a limit of not less than ten million dollars
($10,000,000);
b. Intellectual Property Insurance covering infringement of patents,
trademarks, trade secrets, and copyright infringement as respects the
design and development of the systems used to operate and maintain the
Service for a limit of not less than one million dollars ($1,000,000);
c. Commercial Blanket Bond covering each employee while engaged in the
work hereunder with a limit of not less than one million dollars
($1,000,000) and including coverage, without limitation, for property
of others in possession of said employee while performing their duties
for Lender;
d. If DealerTrack has any employees, Workers' Compensation and Employer's
Liability Insurance in accordance with the applicable laws of the
State of New York or the state in which the work is to be performed or
of the state in which DealerTrack is obligated to pay compensation to
employees engaged in the performance of the work. The policy limit
under the Employer's Liability Insurance section shall not be less
than one million dollars ($1,000,000) for any one accident;
e. Commercial General Liability Insurance covering the work, the
performance of the Service and everything incidental thereto, with
limits of not less than two million dollars ($2,000,000) per
occurrence combined single limit, and extended to cover: (i)
Contractual Liability assumed by DealerTrack under the indemnification
set forth in Section 16, (ii) if any of the work is subcontracted,
Independent Contractors Liability providing coverage in connection
with such portion of the work which may be subcontracted, (iii) Broad
Form Property Damage Liability, and (iv) Personal Injury and
Advertising Liability;
f. Automobile Liability including coverage on owned, hired, and non-owned
automobiles and other vehicles, if used in connection with the
performance of the work, with Bodily Injury and Property Damage limits
of not less than two million dollars ($2,000,000) per occurrence
combined single limit;
g. Building and/or Personal Property Insurance including coverage for the
cost to research, replace, or restore lost information of damaged
valuable papers and records including those that exist on electronic
or magnetic media, against all risks of physical loss or damage
including theft, on a replacement cost basis;
h. Business Interruption and Extra Expense Insurance against all risks of
physical loss or damage including off-premises power failure and
consequential losses resulting from the disruption of a supplier or
subcontractors operations;
i. Comprehensive Crime Insurance, including (i) Employee
Dishonesty/Fidelity (including Computer Crime/Fraud coverage for all
officers and employees of the Insuring Party, including officers and
employees who are shareholders of the Insuring Party) with a minimum
coverage limit of $5,000,000 per loss, (ii) Computer Crime/Fraud
coverage for all other persons with a minimum coverage limit of
$5,000,000 per loss, (iii) Forgery coverage with a minimum coverage
limit of $5,000,000 per loss, (iv) On Premises coverage with a minimum
coverage limit of $5,000,000 per loss, and (v) In Transit coverage
with a minimum coverage limit of $5,000,000 per loss, and;
j. Such other insurance as may be required from time to time by notice to
DealerTrack.
DealerTrack shall have its insurance carrier or carriers issue Certificates
of Insurance to Lender evidencing that all insurance required is in force,
and such certificates shall stipulate that the insurance shall not be
canceled or substantially changed without thirty (30) days prior notice in
accordance with the notice provisions set forth in herein. Should
DealerTrack at any time neglect or refuse to provide the required
insurance, or should such insurance be canceled, Lender shall have the
right to procure such insurance and the cost thereof shall be deducted from
monies then due or thereafter to become due DealerTrack. DealerTrack's
insurance shall be primary and all insurance carried by Lender is strictly
excess and shall not contribute with DealerTrack's insurance.
23. Links and Licenses.
a. DealerTrack agrees to promptly provide during the term of this
Agreement, upon Lender's request and in Lender's sole discretion,
navigation through two way browser links from the DealerTrack Site to
the Lender Site with return links to the DealerTrack Site from the
Lender Site (collectively the "Site Link").
b. Lender hereby grants DealerTrack a royalty-free, non-exclusive license
to use the Lender Marks in connection with the Site Link described in
Section 23(a) above, subject to the terms and conditions established
by Lender from time to time in its sole discretion.
c. DealerTrack hereby grants Lender a royalty-free, non-exclusive license
to use the DealerTrack Marks, in connection with the Site Link
described in Section 23(a) above, subject to the terms and conditions
established by DealerTrack from time to time in its sole discretion.
d. In the event that Lender elects to require the Site Link, Lender then
grants DealerTrack a royalty-free, non-exclusive license to link the
DealerTrack Site to the Lender Site.
e. In the event that Lender elects to require the Site Link, DealerTrack
then grants Lender a royalty-free, non-exclusive license to link the
Chase Site to the DealerTrack Site.
24. Marks. Except as provided herein, DealerTrack will not use the Lender Marks
and Lender will not use the DealerTrack Marks without the other party's
prior written consent. The parties acknowledge and agree that DealerTrack
is the owner of any and all DealerTrack Marks and Lender is the owner of
any and all Lender Marks. The parties acknowledge and agree that they shall
not acquire any ownership rights whatsoever in any Marks of the other
party. The terms of this Section 24 shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or otherwise.
25. Miscellaneous.
a. Entire Agreement. This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof, and no
party shall be bound by any conditions, definitions, warranties,
understandings or representations with respect to such subject matter
other than as expressly provided herein, or in any prior existing
written agreement between the parties. This Agreement supersedes all
prior oral or written representations, agreements, promises, or other
communications, concerning or relating to the subject matter of this
Agreement. No terms or conditions or any Financial Institution
purchase order form or other form originated by Lender will be
effective as a modification of the terms and conditions of this
Agreement, unless duly executed by both parties.
b. Modifications and Amendments; Waiver. Except as otherwise expressly
provided in this Agreement, this Agreement may not be amended or
modified except by a written agreement signed by authorized
representatives of each party. The failure of DealerTrack or Lender in
any one or more instances to insist upon strict performance of any of
the terms or provisions of this Agreement will not be construed as a
waiver or relinquishment, to any extent, of the right to assert or
rely upon any such terms or provisions on any future occasion.
c. Headings. The captions to sections of this Agreement are for
convenience of reference only and do not in any way limit or amplify
the terms or conditions hereof.
d. Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, such provision
or requirement will be enforced only to the extent it is not in
violation of such law or is not otherwise unenforceable and all other
provisions and requirements of this Agreement will remain in full
force and effect.
e. Notices. Where notice, approval or similar action by either party is
permitted or required by any provision of this Agreement, such action
shall not be unreasonably delayed or withheld. Any notice, demand or
other communication required or permitted under the terms of this
Agreement shall be in writing and shall be made by Federal Express,
Airborne Express, or other similar overnight delivery service,
telegram, telex, facsimile or electronic transmitter or certified or
registered mail, return receipt requested. A notice shall be deemed to
be received by the addressee: one (1) business day after sending, if
sent by overnight delivery service, telegram, telex, facsimile or
electronic transmitter; and three (3) business days after mailing, if
sent by certified or registered mail. Notices shall be addressed as
follows:
In the case of notices to Lender:
Xxxxx Fargo Bank
Xxxxx Xxxxxx
0000 Xxxxxxx
Xxxxxx Xxxxx, XX
In the case of notices to DealerTrack:
DealerTrack
000 Xxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx XxXxxx
Any party to this Agreement may from time to time change its address
for notification purposes by giving the other prior written notice of
the new address and the date upon which it will become effective.
f. Successors and Assigns. This Agreement may not be assigned by either
party without the prior written consent of the other party, and any
attempted unauthorized assignment will be void; provided, however,
that a party may assign this Agreement to any of its Affiliates.
Notwithstanding the foregoing, either party may assign any of its
rights and obligations under this Agreement to the surviving
corporation with or into which that party may merge or consolidate, or
an entity to which that party transfers all, or substantially all, of
its voting securities or assets; provided, however, that upon notice
of such event the other party shall have the right to terminate this
Agreement without cause on thirty (30) days prior written notice to
the other party.
g. Relationship of Parties; Third Party Beneficiaries. Nothing in this
Agreement shall constitute or be deemed to constitute a relationship
of employer and employee, agency, joint venture or partnership between
the parties hereto or constitute or be deemed to constitute one party
as agent of the other, for any purpose whatsoever, and except as
expressly provided herein, neither party shall have the authority or
power to bind the other, or to contract in the name of or create a
liability against the other, in any way or for any purpose.
DealerTrack will perform all services under this Agreement as an
independent contractor. No person or entity not a party to this
Agreement, including but not limited to DealerTrack Dealers, will be
deemed to be a third party beneficiary of this Agreement or any
provision hereof.
h. Governing Law: Jurisdiction. This Agreement will be governed by and
construed and enforced solely and exclusively in accordance with the
laws of the State of New York exclusive of its choice of law rules and
without application of the rule of contract construction that
ambiguities in a contract are construed against the interests of the
party drafting the contract.
i. Background and Exhibits. The exhibits identified below, as they may be
modified in accordance with the terms of this Agreement, are
incorporated by reference herein and shall constitute substantive
parts of this Agreement.
j. EEOC. Unless exempt, DealerTrack will comply with U.S. Department of
Labor regulations regarding (a) equal employment opportunity
obligations of government contractors and subcontractors, 41 Code of
Federal Regulations ("CFR") Section 60.1.4 (a)(l)-(7); (b) employment
by government contractors of Vietnamera and disabled veterans, 41
C.F.R. Section 60-250.4 (a)-(m); (c) employment of the physically
handicapped by government contractors and subcontractors, 41 C.F.R.
Section 60-741.4 (a)-(f); (d) developing written affirmative action
programs, 41 C.F.R. Section 60-2.1, 60-250.5 and 60-741.5; (e)
certifying no segregated facilities, 41 C.F.R. Section 60-1.8(f); (f)
filing annual EEO-1 reports, 41 C.F.R. Section 60-1.7; and (g)
utilizing minority-owned and female-owned business concerns, 48 C.F.R.
Section 52-219.9 and 52-219.12, all of which are incorporated herein
by reference.
k. Ethical Hack. DealerTrack agrees that Lender is permitted to conduct
an Ethical Hack as part of Lender's normal information security due
diligence review and compliance. "Ethical Hack" shall mean the efforts
of a third party computer security testing firm on the systems used in
the operation of the Service to identify any security faults. If
vulnerabilities are identified, DealerTrack will document its
remediation proposal and provide Lender with such documentation and
reports on the status of modifications to correct such
vulnerabilities.
1. Nondisclosure of Terms. Each party agrees for itself, its agents, and
representatives that the terms of this Agreement are confidential, and
neither party shall disclose any of the terms hereof to any third
party (except for disclosure reasonably made to legal representatives
and accountants) without the prior written consent of the other party
or as may be required by either party to comply with applicable U.S.
laws or regulations.
m. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an
original and all of which shall constitute the same instrument.
n. Regulatory Matters. DealerTrack shall notify Lender of any material
claim or demand that is communicated to DealerTrack from any
governmental agency, regarding DealerTrack's activities (provided such
claim or demand is related to this Agreement) or any action pertaining
to the foregoing which is commenced against DealerTrack by any
governmental agency and shall keep Lender apprised of the status
and/or disposition of all such claims, demands and litigation.
o. Force Majeure. To the extent that either party's performance of any of
its obligations pursuant to this Agreement is prevented, hindered or
delayed, directly or indirectly, by a Force Majeure Event, and such
non-performance could not have been prevented by reasonable
precautions, then the non-performing party shall be excused from any
further performance of those obligations. The non-performing party
shall only be excused for so long as such Force Majeure Event
continues and such party continues to use its best efforts (or cause
its subcontractor to use best efforts) to recommence performance
whenever and to whatever extent possible without delay, including
through the use of alternate sources, work around plans or other
means. The party whose performance is prevented, hindered or delayed
by a Force Majeure Event shall immediately notify the other party by
telephone of the occurrence of the Force Majeure Event and describe
the Force Majeure Event in reasonable detail (to be confirmed in
writing within two days of the inception of such delay, or as soon as
practicable). If any Force Majeure Event prevents or restricts
DealerTrack's performance of the Service and DealerTrack does not
within three (3) consecutive days recommence provision of the Service,
Lender may, upon notice to DealerTrack, terminate this Agreement. The
occurrence of a Force Majeure Event does not limit or otherwise affect
DealerTrack's obligation to provide either normal recovery procedures
or any other disaster recovery services required pursuant to Lender
Information/Technology Control Policies set forth in this Agreement.
p. Interpretation of Documents. In the event of a conflict between this
Agreement and the terms of any Exhibit, the terms of this Agreement
shall prevail.
q. Publicity. DealerTrack: (i) shall submit to Lender all proposed
advertising, sale promotion and other publicity material in which
Lender's name is mentioned or language is used from which Lender's
name may be inferred or implied and shall not publish or use any such
material without the prior written consent of Lender, and (ii) shall
not publicly reveal the existence of this Agreement or any of its
terms without the prior written consent of Lender. Notwithstanding the
foregoing, DealerTrack will submit all approvals of the DealerTrack
Site, and web pages as provided in Section 11, and Lender agrees that
DealerTrack may use Lender's name when identifying lenders who have
executed agreements with DealerTrack and who are utilizing the
DealerTrack Services.
r. Arbitration.
i. Upon the demand of any party, any Dispute shall be resolved by
binding arbitration in accordance with the terms of this Section
25 (r) [except as set forth in subsection (5) below]. A "Dispute"
shall mean any action, dispute, claim or controversy of any kind,
whether in contract or tort, statutory or common law, legal or
equitable, now existing or hereafter arising under or in
connection with, or in any way pertaining to this Agreement. Any
party may by summary proceedings, bring an action in court to
compel arbitration of a Dispute. Any party who fails or refuses
to submit to arbitration following a lawful demand by any other
party shall bear all costs and expenses incurred by such other
party in compelling arbitration of any Dispute.
ii. Governing Rules. Arbitration proceedings shall be administered by
the American Arbitration Association ("AAA") or such other
administrator as the parties shall mutually agree upon.
Arbitration shall be conducted in accordance with the AAA
Commercial Arbitration Rules. If there is any inconsistency
between the terms hereof and any such rules, the terms and
procedures set forth herein shall control. All Disputes submitted
to arbitration shall be resolved in accordance with the Federal
Arbitration Act (Title 9 of the United States Code). The
arbitration shall be conducted at a location in New York selected
by the AAA or other administrator. All statutes of limitation
applicable to any Dispute shall apply to any arbitration
proceeding. All discovery activities shall be expressly limited
to matters directly relevant to the Dispute being arbitrated.
Judgment upon any award rendered in an arbitration may be entered
in any court having jurisdiction; provided however, that nothing
contained herein shall be deemed to be a waiver, by any party
that is a bank, of the protections afforded to it under 12 U.S.C.
Section 91 or any similar applicable state law.
iii. No Waiver; Provisional Remedies. No provision hereof shall limit
the right of any party to obtain provisional or ancillary
remedies, including without limitation injunctive relief,
attachment or the appointment of a receiver, from a court of
competent jurisdiction before, after or during the pendency of
any arbitration or other proceeding. The exercise of any such
remedy shall not waive the right of any party to compel
arbitration or reference hereunder.
iv. Arbitrator Qualifications and Powers; Awards. Arbitrators must be
active members of the New York State Bar or retired judges of the
state or federal judiciary of New York, with expertise in the
substantive laws applicable to the subject matter of the Dispute.
Arbitrators are empowered to resolve Disputes by summary rulings
in response to motions filed prior to the final arbitration
hearing. Arbitrators (i) shall resolve all Disputes in accordance
with the substantive law of the state of New York, (ii) may grant
any remedy or relief that a court of the state of New York could
order or grant within the scope hereof and such ancillary relief
as is necessary to make effective any award, and (iii) shall have
the power to award recovery of all costs and fees, to impose
sanctions and to take such other actions as they deem necessary
to the same extent a judge could pursuant to the Federal Rules of
Civil Procedure, the New York Rules of Civil Procedure or other
applicable law. Any Dispute in which the amount in controversy is
$2,000,000 or less shall be decided by a single arbitrator who
shall not render an award of greater than $2,000,000 (including
damages, costs, fees and expenses). By submission to a single
arbitrator, each party expressly waives any right or claim to
recover more than $5,000,000. Any Dispute in which the amount in
controversy exceeds $2,000,000 shall be decided by majority vote
of a panel of three arbitrators; provided however, that all three
arbitrators must actively participate in all hearings and
deliberations.
v. Judicial Review. Notwithstanding anything herein to the contrary,
in any arbitration in which the amount in controversy exceeds
$2,000,000, the arbitrators shall be required to make specific,
written findings of fact and conclusions of law. In such
arbitrations (i) the arbitrators shall not have the power to make
any award which is not supported by substantial evidence or which
is based on legal error, (ii) an award shall not be binding upon
the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous
under the substantive law of the state of New York, and (iii) the
parties shall have in addition to the grounds referred to in the
Federal Arbitration Act for vacating, modifying or correcting an
award, the right to judicial review of (A) whether the findings
of fact rendered by the arbitrators are supported by substantial
evidence, and (B) whether the conclusions of law are erroneous
under the substantive law of the state of New York. Judgment
confirming an award in such a proceeding may be entered only if a
court determines the award is supported by substantial evidence
and not based on legal error under the substantive law of the
state of New York.
vi. Damages. The arbitrator(s) will have no authority to award
damages in excess of those set forth in Section 25 (r) of this
Agreement. Any award in an arbitration under this Section shall
be limited to monetary damages and shall include no injunction or
direction to any party other than the direction to pay a monetary
amount.
vii. Miscellaneous. To the maximum extent practicable, the AAA, the
arbitrators and the parties shall take all action required to
conclude any arbitration proceeding within 180 days of the filing
of the Dispute with the AAA. No arbitrator or other party to an
arbitration proceeding may disclose the existence, content or
results thereof, except for disclosures of information by a party
required in the ordinary course of its business, by applicable
law or regulation, or to the extent necessary to exercise any
judicial review rights set forth herein. This arbitration
provision shall survive termination, amendment or expiration of
the Agreement or any relationship between the parties.
IN WITNESS WHEREOF, the parties to this Agreement have signed and affixed their
seals to this Agreement effective as of the day and year first written above.
DEALERTRACK INC. XXXXX FARGO & COMPANY
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxxx X Xxxxx
--------------------------------- ------------------------------------
Name: Xxxx Xxxxxx Name: Xxxxxxx X Xxxxx
Title: Vice President Title: Group Executive Vice President
AMENDMENT TO DEALERTRACK LENDER AGREEMENT
This AMENDMENT TO DEALERTRACK LENDER AGREEMENT (this "Amendment") is
made and entered into as of December 28, 2001, by and between XxxxxxXxxxx.xxx,
Inc. ("DealerTrack") and Xxxxx Fargo & Company ("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of August 31, 2001 (the "Lender Agreement"); and
WHEREAS, DealerTrack and Lender desire to (i) amend Section 12(m)
relating to fees and charges on a sliding scale tied to volume, (ii) provide
Lender with certain other rights, including amending Section 18 (Audits) as set
forth in Section 3 hereto, (iii) amend Section 9 (Term and Termination) to
restrict DealerTrack's right to terminate the Agreement and (iv) amend Section
22(a) (Insurance) to provide for a lower insured limit for Errors & Omission
liability insurance, effective as of the date hereof, on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Lender Agreement.
2. Amendment of Section 12(m).
(A) Section 12(m) is hereby amended by adding the phrase "or in any
other agreement entered into by and between the parties with respect to the
provision of products and services by DealerTrack" after the words "this
Agreement" in the first sentence of such Section 12(m).
(B) Section l2(m) is hereby amended by (i) deleting the phrase "volume
amount" in the last sentence of such Section 12(m) and replacing it with the
phrase "specified volume amount of a specific type of transaction processed
through the Service," and (ii) inserting the phrase "for such specific type of
transaction." at the end of the last sentence of such Section 12(m).
3. Product Placement, Preferences and Audit Information.
(A) The following section is hereby added after Section 25(r)(vii) of
the Lender Agreement:
26. Product Placement and Preferences. For no additional
consideration and unless otherwise approved by the Board of Directors of either
DealerTrack or its parent company, DealerTrack Holdings, Inc. (the "Parent
Company"):
(a) Product Placement.
(i) If DealerTrack elects, in its sole discretion, and provided
DealerTrack has received the written permission of Lender, to place on the
DealerTrack
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Site the name, xxxx, logo, advertisement, description of products and
services, promotional and informational content ("Product Information") of
Lender, DealerTrack shall place such Product Information (x) Prominently
(as defined below) and (y) not less Prominently than it places
substantially similar Product Information of any DealerTrack Financial
Institution, or its Affiliate, which is a stockholder of the Parent Company
(a "Stockholder Lender"); and
(ii) Notwithstanding anything to the contrary contained in
Section 26(a)(i), DealerTrack shall place on the DealerTrack Site the
Product Information of each Stockholder Lender not less Prominently than
the Product Information it places substantially similar Product Information
of any other third party (excluding DealerTrack, its subsidiaries, the
Parent Company and any other majority-owned subsidiaries of the Parent
Company).
(iii) For the purpose hereof, "Prominently" means in a readily
noticeable and conspicuous manner.
(iv) The refusal of Lender to grant permission to DealerTrack to
place Product Information of Lender on the DealerTrack Site after receiving
a written request from DealerTrack for such permission shall not result in
a breach by either DealerTrack or Lender of Section 26(a)(i) or 26(a)(ii).
(v) Nothing contained in this Section 26(a) shall be construed to
prevent Captives (as defined below), which may or may not be Stockholder
Lenders, from being granted special treatment by DealerTrack with respect
to placement of Product Information, if requested by an automobile
manufacturer or automobile distributor in connection with the sale of its
automobiles by and at the location of its franchised DealerTrack Dealers.
For purposes of this Agreement, "Captives" means a finance company either
owned or designated by an automobile manufacturer or automobile distributor
to whom such automobile manufacturer or automobile distributor provides
subvention dollars in order for such finance company to provided subvention
financing to such automobile manufacturer's or automobile distributor's
franchised DealerTrack Dealers solely for such automobile manufacturer's or
automobile distributor's vehicles.
(b) No Preference in Credit Application Transmission. DealerTrack
shall not, subject to the right of each DealerTrack Dealer, together with its
Affiliates, or DealerTrack Financial Institution to create and or use one or
more credit application filtering process in connection with the Service (which
shall only affect credit applications associated with such DealerTrack Dealer
and its Affiliates or such DealerTrack Financial Institution), prefer any
Stockholder Lender as to another Stockholder Lender or any other DealerTrack
Financial Institution with respect to the transmission of any credit
applications by a DealerTrack Dealer in electronic form by means of the Service
to a DealerTrack Financial Institution. Nothing contained in this Section 26(b)
shall be construed to prevent Captives, which may or may not be Stockholder
Lenders, from being granted special treatment by DealerTrack with respect to
credit applications originated at their affiliated DealerTrack Dealers, if
requested by an automobile manufacturer or automobile distributor in connection
with the sale of its automobiles by and at
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the location of its franchised DealerTrack Dealers.
(B) Section 18 of the Lender Agreement is hereby amended by adding
"(a)" after the phrase "Audit Rights" and adding the following subsection (b)
after Section 18(a):
"(b) Lender shall be entitled to designate, subject to the approval of
DealerTrack which shall not be unreasonably withheld, an independent auditor of
national standing to audit DealerTrack's records relating to DealerTrack's
compliance with the most favored pricing treatment provisions of Section 12(m)
of this Agreement with respect to the fees or charges which were charged to
Lender thereunder no more often than once per calendar year. The sole purpose of
such audit shall be to enable such auditor to report to Lender as to whether
DealerTrack has complied with its obligations under Section 12(m) of this
Agreement. Such audit shall not unreasonably interfere with the conduct of
DealerTrack's business, and the independent auditor conducting such audit, prior
to the conduct of such audit, shall agree in writing with DealerTrack to keep
confidential all materials and information (including, without limitation, all
agreements with DealerTrack Dealers and DealerTrack Financial Institutions,
including, without limitation, the other Stockholder Lenders, and the terms
thereof) supplied to them by DealerTrack in connection with such audit. Such
audit shall be at Lender's expense; provided that if such audit demonstrates any
overpayment of the amount due under this Agreement for the period audited of
three percent (3%) or more, then the expense of such audit shall be borne by
DealerTrack. To the extent that the audit reveals a violation of Section 12(m)
with respect to the calculation of fees and charges resulting in payments by
Lender greater than those of other DealerTrack Financial Institutions,
DealerTrack shall reimburse Lender for such overpayment within twenty (20) days
of receipt of written notice by Lender of such overpayment."
(C) Section 16(a) of the Lender Agreement is hereby amended by
deleting 16(a)(ii) in its entirety and replacing such subsection with the
following:
"(ii) gross negligence, or willful or wanton behavior of the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees, or agents; or
(iii) or asserted by a third party against the indemnifying party with
respect to the use of any approved Product Information (including, without
limitation, Lender Marks) provided by such party."
4. Amendment of Section 9(a). Section 9(a)of the Lender Agreement is
hereby amended by deleting Section 9(a) in its entirety and replacing such
subsection with the following:
"The term of this Agreement shall begin on the Effective Date, and
shall continue for a period of two (2) years from the Acceptance Date (the
"Initial Term") unless sooner terminated as provided below. Upon expiration of
the Initial Term, unless terminated by either party by notice of termination
given not less than sixty (60) days prior to expiration of the Initial Term,
this Agreement shall automatically renew for successive one (1) year terms
(each, a "Renewal Term"). During any Renewal Term, notice of termination by
either party shall be effective at the end of such Renewal Term by notice of
termination if given not less than sixty
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(60) days prior to the expiration of such Renewal Term. Notwithstanding anything
contained in this Section 9(a) to the contrary, DealerTrack shall not have any
right whatsoever to terminate this Agreement upon the expiration of the Initial
Term or any such Renewal Term, as the case may be, except for cause as set forth
in Section 9(b) below, for so long as the Lender, together with its Affiliates
(as such term is defined in the Amended and Restated Stockholders' Agreement of
the Parent Company, dated as of the date hereof, among the Parent Company and
the stockholders listed therein (the "Stockholders' Agreement")), holds either
(i) equity securities of the Parent Company representing at least five (5%)
percent of the voting power thereof (determined on a Fully Diluted Basis (as
defined in the Stockholders' Agreement)), (ii) seventy five (75%) percent of the
capital stock of the Parent Company held by it as of the Effective Date (as
adjusted for stock splits, stock dividends and the like) or (iii) capital stock
whose fair market value is at least $6,000,000 based on the last offering of
securities by the Parent Company. Notwithstanding anything contained in this
Section 9(a) to the contrary, prior to any renewal of the Agreement hereunder,
the parties agree to negotiate in good faith any amendments to the then current
terms and conditions of the Agreement (other than the most favored pricing
provisions set forth in Section 12(m)) that make the then current terms and
conditions of the Agreement impractical in light of changes to DealerTrack's
business and provided further, that DealerTrack is attempting to treat Lender in
substantially a similar manner as other DealerTrack Financial Institutions."
5. Amendment of Section 22(a). Section 22(a)of the Lender Agreement is
hereby amended by deleting Section 22(a) in its entirety and replacing such
subsection with the following:
"Errors & Omissions Liability covering the design, development,
maintenance, operation of the Services, and anything incidental thereto, for a
limit of not less than one million dollars ($1,000,000);"
6. Authority. Each party represents that it has the authority to enter
into this Amendment and its authority is not inhibited by any agreement or legal
proceeding.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts by
facsimile or otherwise, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
8. Governing Law. This Amendment shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
applicable to contracts made or performed in such State.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by its authorized officer as of the date first
above written.
XXXXXXXXXXX.XXX, INC.
BY: /s/ Xxxx X. X'Xxxx
------------------------------------
Name: Xxxx X. X'Xxxx
Title: Chief Executive Officer
XXXXX FARGO AUTO FINANCE, INC.
By: /s/ Xxx Xxxxx
------------------------------------
Name: Xxx Xxxxx
Title: Executive Vice President &
Head of Auto Finance
S-1
SECOND AMENDMENT TO DEALERTRACK LENDER AGREEMENT
This SECOND AMENDMENT TO DEALERTRACK LENDER AGREEMENT (this
"Amendment") is made and entered into as of October 24, 2002, by and between
DealerTrack, Inc., f/n/a XxxxxxXxxxx.xxx, Inc. ("DealerTrack") and Xxxxx Fargo &
Company and any of its Affiliates ("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of August 31, 2001, as amended by that certain Amendment to
DealerTrack Lender Agreement, dated as of December 28, 2001 (the "Lender
Agreement"); and
WHEREAS, DealerTrack and Lender desire to (i) amend Section 11(a) with
respect to the grant of a license to Lender and its Affiliates use of the
Service in Canada and (ii) amend Section 12(m) with respect to the most
favorable treatment of certain fees and charges under certain circumstances,
effective as of the date hereof, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1.Definitions. Capitalized terms used herein and not otherwise defined
shall have the meanings set forth in the Lender Agreement.
2.Amendment of Section 11(a). Section 11(a) is hereby amended by
inserting the phrase "and Canada" after the phrase "United States" in the first
sentence.
3.Amendment of Section 12(m). Section 12(m) is hereby amended by
deleting Section 12(m) in its entirety and replacing such subsection with the
following:
"DealerTrack shall not charge Lender any fee and/or charge for any
products or services provided to Lender under the terms of the Agreement or in
any other agreement entered into by and between the parties with respect to the
provision of products and services by DealerTrack that are higher than the
lowest fee and/or charge that DealerTrack charges any other DealerTrack
Financial Institution for such products or services, except for any discount on
a fee or charge offered to (i) Captives, whether or not such Captives are
Stockholder Lenders, upon the prior approval of at least seventy-five percent
(75%) of the board of directors of DealerTrack and (ii) a new DealerTrack
Financial Institution (including any Captives) for a period not to exceed six
(6) months after the "Acceptance Date" of such DealerTrack Financial
Institution. In the event that such fee and/or charge is based on a sliding
scale tied to a specified volume amount of a specific type of transaction
processed through the Service, Lender's fee and/or charge shall be no higher
than the lowest fee or charge applicable to any DealerTrack Financial
Institution (other than any Captives whose fees and charges have been approved
by the board of directors of DealerTrack as provided for in clause (i) of the
preceding sentence) for Lender's actual volume amount for such specific type of
transaction."
4.Authority. Each party represents that it has the authority to enter
into this Amendment and its authority is not inhibited by any agreement or legal
proceeding.
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5.Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts by
facsimile or otherwise, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by its authorized officer as of the date first
above written.
DEALERTRACK, INC.
By:
------------------------------------
Name: Xxxx X. X'Xxxx
Title: Chief Executive Officer &
President
XXXXX FARGO & COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
THIRD AMENDMENT TO DEALERTRACK LENDER AGREEMENT
This THIRD AMENDMENT TO DEALERTRACK LENDER AGREEMENT (this
"Amendment") is made and entered into as of May ___, 2003, by and between
DealerTrack, Inc. f/k/a XxxxxxXxxxx.xxx, Inc. ("DealerTrack") and Xxxxx Fargo &
Company and any of its Affiliates ("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of August 31, 2001, as amended by those certain Amendments
to DealerTrack Lender Agreement, dated as of December 28, 2001 and October 24,
2002 (the "Lender Agreement"); and
WHEREAS, DealerTrack and Lender desire to (i) amend Section 9(d) to
reflect a change in termination rights, (ii) amend Section 10 (Payments and
Payment Terms) to reflect the purchase of Additional Products by Lender from
DealerTrack (iii) amend Section 12(g) with respect to DealerTrack's compliance
with applicable laws and (iv) amend Section 16(a) with respect to an added
indemnification by the parties, effective, in each case as of the date hereof,
on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Lender Agreement.
2. Amendment of Section 9(d).
Section 9(d) of the Lender Agreement is hereby amended by deleting
Section 9(d) in its entirety and replacing such subsection with the following:
"d. This Agreement may be terminated in its entirety or with respect
to any product or service purchased by Lender without cause, upon thirty (30)
days prior written notice, in the event that any fee or charge set forth in this
Agreement with respect to such product or service purchased by Lender is
increased or a new fee or charge with respect to such product or service
purchased by Lender is imposed on Lender by DealerTrack."
3. Amendment of Section 10.
Section 10 of the Lender Agreement is hereby amended by deleting
Section 10 in its entirety and replacing such subsection with the following:
"10. Payments and Payment Terms.
Lender agrees to pay DealerTrack when due the fees and charges set
forth in this Agreement. Unless otherwise specified, DealerTrack shall invoice
Lender monthly for all fees and charges, payable thirty (30) days after receipt
of such invoice."
4.Amendment of Section 12(g).
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Section 12(g) of the Lender Agreement is hereby amended by deleting
Section 12(g) in its entirety and replacing such subsection with the following:
"g. In connection with carrying out its obligations contained in this
Agreement, DealerTrack shall comply at all times with all applicable federal and
state laws, rules and regulations."
5. Amendment of Section 16(a). Section 16(a) of the Lender Agreement
is hereby amended by deleting Section 16(a)(iii) in its entirety and replacing
such subsection with the following:
"(iii)asserted by a third party against the indemnified party with
respect to (1) the use of any approved Product Information (including, without
limitation, Lender Marks) provided by the indemnifying party or (2) a default or
alleged default by the indemnifying party arising out of or related to this
Agreement, including, without limitation, any addendum hereto."
6. Authority. Each party represents that it has the authority to enter
into this Amendment and its authority is not inhibited by any agreement or legal
proceeding.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts by
facsimile or otherwise, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
[Remainder of page intentionally left blank]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by its authorized officer as of the date first
above written.
DEALERTRACK, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXXX FARGO & COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
