Exhibit 10.33
DEALERTRACK
LENDER AGREEMENT
(WFS Financial. Inc.)
This DealerTrack Lender Agreement is made as of the 13th day of April, 2001 (the
"Effective Date") by and between XxxxxxXxxxx.xxx, Inc. ("DealerTrack"), with its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000,
and WFS Financial Inc, a California Corporation ("Lender"), with its principal
place of business at 00 Xxxxxxx, Xxxxxx, Xxxxxxxxxx.
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 on a
non-exclusive basis 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.
1 of 32
b. "Affiliate" of a party 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. 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 or in
accordance with its terms, and all exhibits attached to this Agreement, as they
may from time to time be modified.
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. 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.
2 of 32
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 and that relate to the Services.
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 written 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
3 of 32
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 computer(s) 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 computer(s) on which the Lender's
Interface Software Components are 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 Software" means, Lender's, and any Lender Affiliates' software
(whether internally developed, or licensed, by Lender or Lender Affiliate) which
processes and decisions credit applications transmitted by means of the Service.
cc. "Lender System" means, collectively, the Lender Software, the Lender
Computer, and all operating or system software installed on the Lender Computer.
4 of 32
dd. "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 passenger
vehicles and light duty trucks (collectively, "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 and such other services provided by DealerTrack
from time to time 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.
ee. "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 the
United States in accordance with the terms of this Agreement. Nothing in this
Agreement shall preclude Lender, or Lender affiliates, from utilizing the
services of other persons or entities that are similar to or competitive with
the Services or from developing its own service that is similar or competitive
with the Service. 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 thirty (30) days
after the Effective Date. The form of the Interface Development Schedule shall
set forth the respective responsibilities of each party relating to the
development of the Interface. To finalize the Interface Development Schedule
with respect to development of
5 of 32
the Interface for Lender, the parties shall establish 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. Upon finalization and execution by the parties of the
Interface Development Schedule, the Interface Development Schedule shall become
a part of this Agreement as Exhibit C and shall be binding on both parties. 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 on a mutually agreed upon schedule. The schedule
shall be completed within 30 days of signing the agreement
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 such cooperation to
the extent that such cooperation requires its involvement in any tasks other
than those specifically set forth in the Interface Development Schedule or as
required under this Agreement. 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 Acceptance Date to
occur by the earlier of (i) one hundred and twenty (120) days after the
Interface Development Schedule Commencement Date, or (ii) one hundred and fifty
(150) days after the Effective Date.
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.
6 of 32
b. Lender shall be responsible for maintaining (i) the Lender Interface
Software Components and the Lender's Interface Server in accordance with the
Interface Requirements Document, and (ii) the Lender Interface Equipment
Components in accordance with the applicable maintenance standards of the
equipment manufacturer so as to not adversely impact the performance of the
Service. In addition, Lender shall develop a system to back up the Lender's
Interface Server. Lender acknowledges that DealerTrack shall not be responsible
for any problems caused in whole or in part by failure of Lender to maintain the
Lender Interface Components in accordance with Section 4.
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 reasonably deemed
necessary by DealerTrack: (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 one hundred twenty (120) 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 DealerTrack, 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 one hundred twenty
(120) 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
7 of 32
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 in writing by the parties.
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.
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 at its expense provide appropriate resources including
technical, implementation and program management support to establish and
maintain the DealerTrack Site and the Service as set forth and required in
Section 5(a) of this Agreement. DealerTrack will provide to Lender a contact
list of support, technical, marketing and program management representatives
that may be contacted by Lender.
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 required 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. 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.
g. DealerTrack, at its sole expense, shall develop, implement and maintain
any and all back-up procedures and systems, redundant systems, and disaster
recovery systems relating to the DealerTrack Computer, DealerTrack Interface
Components, and DealerTrack Site as may be necessary to maintain the ongoing
applications of the Service at all times.
h. DealerTrack, at its sole expense, shall develop, implement and maintain
any and all security monitoring and reporting systems to allow Lender to
sufficiently carry out its
8 of 32
responsibilities as outlined in section 6c, provided that such systems relate
solely to the DealerTrack Computer, the DealerTrack Site and the DealerTrack
Interface Components.
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
or unauthorized use thereof by its employees or agents, but shall not be
responsible for charges that are the result of a "hacker" intrusion into the
DealerTrack Computer, the DealerTrack Site, or the DealerTrack Interface
Component. Lender agrees to hold DealerTrack harmless from, and indemnify it
against, all claims, causes of action, losses, liabilities or expenses
(including reasonable attorneys' fees) arising in connection with any misuse or
unauthorized use of Lender's user identification code(s)/password(s) except if
such misuse or unauthorized use is solely as a result of a hacker intrusion into
the DealerTrack Computer, the DealerTrack Site, DealerTrack Interface
Components, or is caused by DealerTrack's negligence and/or willful misconduct
Lender shall be 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. Lender acknowledges that
9 of 32
Lender is solely responsible for the Lender System, and that DealerTrack shall
have no responsibility for any problems caused in whole or in part by Lender's
development, implementation or maintenance of, or failure to develop, implement
or maintain, back-up, redundant or disaster recovery systems relating to the
Lender System.
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.
9. Term and Termination
a. The terms of this Agreement shall begin on the Effective Date, and shall
continue for a period of three (3) 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 one hundred and twenty (120) 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 one hundred and twenty (120) days prior to the
expiration of such Renewal Term.
10 of 32
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 the
other party ceases to do business, or otherwise substantially terminates its
business operations; (ii) if the other party shall fail to promptly secure or
renew any material license, registration, permit, authorization or approval for
the conduct of its business in the manner contemplated by this Agreement, or if
any such license, registration, permit, authorization or approval is revoked or
suspended and not reinstated within thirty (30) days; (iii) if the other party
breaches any material provision of this Agreement and fails to fully cure such
breach within thirty (30) days of written notice from the other party provided
such notice describing the breach; (iv) if the other party 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 party and not dismissed within thirty (30) days.
c. This Agreement may be terminated by Lender for cause immediately by
written notice if a regulatory agency having authority over Lender issues an
order, directive or other communication finding the Service provided to Lender
will contribute an unsafe and unsound practice or 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, directive or
communication within such period of time as permitted by such regulatory agency.
d. Lender may terminate this Agreement, without cause, upon thirty (30)
days prior written notice to DealerTrack, if: (i) DealerTrack increases any fees
or charges set forth in Section 10 herein, or (ii) DealerTrack deletes a data
field(s) from the Service and such deletion is deemed to be unreasonable to
Lender.
e. Except as otherwise provided herein, in the event of any termination,
the parties shall continue to perform all of their obligations under this
Agreement until the effective date of termination.
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 and any enhancements, modifications and updates 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
11 of 32
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 grants DealerTrack and DealerTrack Affiliates a non-exclusive and
non-transferable license to use the Lender Marks solely for the purpose and as
necessary to provide the Services contemplated by this Agreement.
d. Lender acknowledges and agrees that DealerTrack is the exclusive owner
of and holds and shall retain, all right, title and interest in and to the
DealerTrack Intellectual Property, the DealerTrack Marks, the Service, the
Interface Requirements Document, the DealerTrack Interface Components and the
DealerTrack Computer, including any enhancements, upgrades, improvements,
changes, modifications, revisions or derivative works made to the same from time
to time (the "DealerTrack Property"), and Lender shall have no ownership or use
rights therein except as set forth in 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 enhancements, upgrades, improvements, changes, 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 acknowledges and agrees that Lender is the exclusive owner
of and holds and shall retain, all right, title and interest in and to the
Lender Intellectual Property, the Lender Marks, the Lender System, the Lender
Computer and the Lender Interface Components, including any 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 in writing any proprietary interest that may be conferred upon
DealerTrack by law in any such enhancements, upgrades, improvements, changes,
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
12 of 32
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. 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.
i. DealerTrack acknowledges and agrees that this Agreement is non-exclusive
as to all parties. Except as provided herein, Lender may during the term of this
Agreement enter into agreements for similar services, utilize the services of
other persons, firms or entities that are similar to or competitive with the
Services without obligation to DealerTrack.
12. Representations, Warranties and Covenants by DealerTrack.
DealerTrack represents, warrants and covenants, both as to the Effective
Date and throughout the initial term and any renewal term of this Agreement as
follows:
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, registered where required, and 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
13 of 32
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, insolvency, or
other equitable principles (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.
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 Z, Regulation M, the Federal Fair Credit reporting Act,
the federal Equal Credit Opportunity Act, Regulation B and so called "fair
lending" laws, rules and regulations.
h. No material, 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 and any third party licensor 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. DealerTrack owns or otherwise has the right to grant the license to use
the Service
14 of 32
as set forth herein.
j. It shall use commercially reasonable efforts to keep the DealerTrack
Site free from intentionally injurious instructions (e.g. systems "viruses")
that are designed to modify, damage, delete or disable 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.
k. It shall use commercially reasonable efforts to keep the DealerTrack
Site free from code that could trigger a modification, shut down or disablement
of the Lender System. The terms of this Section 12(j) shall survive the
termination of this Agreement, whether by expiration of time, operation of
law, or otherwise.
l. DealerTrack shall take all commercially reasonable precautions necessary
to ensure that the DealerTrack Computer, DealerTrack Interface Component and the
DealerTrack Site shall be safeguarded against "hacker" intrusions.
m. All Services rendered hereunder shall be performed in a professional,
workmanlike manner in accordance with the applicable documents.
n. All deliverables and other items provided as the result of the Services
shall conform with the applicable documents.
o. The Data inputted into the Service by a DealerTrack Dealer or a
DealerTrack Financial Institution will be transmitted by DealerTrack as
inputted.
p. DealerTrack will not provide to any third party, including but not
limited to, DealerTrack Financial Institutions the list and any and all
information relating to automobile dealers that have entered into agreements
with Lender regarding Lender's purchase of retail and/or lease contracts from
such dealers if such dealers are not new car franchised dealers, except for such
dealers that have also entered into similar agreements with other DealerTrack
Financial Institutions. The terms of this Section 12 (p) shall survive
termination of this Agreement, whether by expiration of time, operation of law
or otherwise.
q. 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, EXPRESS OR IMPLIED,
REGARDING THE SERVICE, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, DEALERTRACK SPECIFICALLY DOES NOT REPRESENT OR
WARRANT (i) THAT THE SERVICE WILL PERFORM WITHOUT INTERRUPTION OR ERROR FREE,
(ii) THAT IT MEETS LENDER'S REQUIREMENTS, OR (iii) EXCEPT AS REPRESENTED AND
WARRANTED IN SUBSECTION "o." OF THIS SECTION, THAT ANY OR ALL OF THE DATA
PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE.
15 of 32
13. Representation and Warranties and Covenants by Lender.
Lender represents, warrants and covenants, both as of the Effective date
and throughout the initial term and any renewal term(s) of this Agreement as
follows:
a. Lender 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, qualified, or otherwise exempt from license or qualification 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, insolvency or
equitable principles (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 or is exempt from 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
16 of 32
all times with all applicable federal and state laws and regulations, including,
without limitation, the Federal Truth in Lending Act, Regulation Z, Regulation
M, the Federal Fair Credit reporting Act, the federal Equal Credit Opportunity
Act, Regulation B and so called "fair lending" laws, rules and regulations.
h. No material, product or other aspect of any technology, trade secret or
other Intellectual Property utilized 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 commercially reasonable efforts to keep the Lender System
free from intentionally injurious instructions (e.g. systems "viruses") that are
designed to modify, damage, delete or disable 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 commercially reasonable efforts to keep the Lender System
free from code that could trigger a modification, shut down or disablement of
the DealerTrack Site. 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 indemnify, defend and hold Lender
harmless from and 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, losses, claims, damages and
attorneys' fees finally awarded to any such third party 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, the DealerTrack Marks, and/or jointly developed
Interface Software are, or in DealerTrack's opinion are likely to become,
subject to a claim of infringement, DealerTrack, at its 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, then Lender may 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) any enhancements, upgrades or
modifications to the Service and/or the
17 of 32
DealerTrack Marks made by Lender, any Lender Affiliate or any party that Lender
authorizes or directs to make such enhancements, upgrades or modifications, or
(iii) 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. Lender
shall indemnify and hold DealerTrack harmless from any damages, losses or costs
associated with such claims.
d. Section 12(h) and 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, (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, codes, or customer, applicant, or
borrower information and/or lists, 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 lawful possession independent of its relationship with Disclosing Party;
(c) has been lawfully 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 lawfully obtained from third parties not known
to be bound by an obligation of confidentiality. For purposes of this Section
15, "customer" refers to those customers who are Lender's consumers, customers
and borrowers. 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
Service. 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
Service 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 (but not
less than reasonable care), 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
18 of 32
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, of which it becomes aware.
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, and provided each such employee, independent contractor and
subcontractor shall be obligated to comply with the terms and conditions of this
Agreement relating to Confidential Information and each such attorney,
accountant, or investment advisor shall either be legally bound to comply with
the terms and conditions of this Agreement or so obligated in writing and such
obligations continue even in the event such Personnel leave the employ of, or no
longer provide services to, Receiving Party. Receiving Party shall be liable for
the actions of its Personnel. 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, if reasonably
possible, 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 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
19 of 32
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.
g. Standards for Safeguarding Customer Information, (i) As regards the
Confidential Information, DealerTrack represents and warrants that it has
implemented appropriate measures designed to meet the objectives of Section 501
(b) of the GLB Act (15 USC 680l(b)) and the federal "Interagency Guidelines
Establishing Standards for Safeguarding Customer Information" adopted pursuant
thereto (66 Fed. Reg. 8615 (Feb. 1,2001), as now or hereafter in effect (the
"Guidelines").
(ii)Upon request by Lender, DealerTrack will provide to Lender
evidence reasonably satisfactory to Lender to allow Lender to confirm that
DealerTrack has satisfied its obligations as required under Section 15G(i).
Without limitation, this may include Lender review of audits, summaries of test
results, and other equivalent evaluations of DealerTrack.
16. Indemnification.
a. Each party shall indemnify, defend 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 any provision of this Agreement by the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees or agents; or
(ii) gross negligence, or 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.
c. A Party entitled to be indemnified pursuant to this Section (the
"Indemnified Party") hereunder shall notify the Party liable for such
indemnification (the "Indemnifying Party") in writing within thirty (30) days of
notice or assertion of such claim(s). Subject to the right of the Indemnifying
Party's right to defend in good faith against claims asserted by third parties
(including employment of counsel), the Indemnifying Party shall respond to its
obligations under this Section within thirty (30) days after receipt of written
notice thereof from the Indemnified Party. If any litigation, lawsuit or other
proceeding ("Proceeding") is initiated against either Party by a person or
entity other than the Parties in connection with the Program,
20 of 32
both Parties agree to cooperate with the other in good faith in defending
against such Proceeding. The terms of this provision shall survive termination
of this Agreement whether by expiration of time, operation of law or otherwise.
17. Limitation Of Liability.
a. Notwithstanding the provisions of Section 16, 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; or (b) a third party claim in which a court has
imposed indirect, special, or consequential damages against the indemnified
party. The terms of this Section 17 shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or otherwise.
b. In the event of the loss of or damage to any Data on the DealerTrack
Computer or in data transfers between the Lender Computer, any DealerTrack
Dealers' terminals/computers, and the DealerTrack Computer, due to a cause for
which DealerTrack is responsible, DealerTrack shall allow Lender and the
DealerTrack Dealers to re-enter the lost or damaged Data on the DealerTrack
Computer without any additional fees accruing to DealerTrack, except in the
event of gross negligence or willful misconduct by DealerTrack.
c. DealerTrack shall have no duty to verify the content or accuracy of, or
in any manner to analyze, Data. As such, DealerTrack is not acting as a credit
bureau reporting agency in and of itself, and Lender is to refer to the specific
credit bureau(s) when making reference to any credit reports. Lender will have
full responsibility for any decisions and/or analyses in which the Service or
any Data may be used or relied upon. Any reliance by Lender upon any Data or the
Service shall not diminish that responsibility, and Lender agrees to hold
DealerTrack harmless from, and indemnify it against, all claims, expenses,
losses or liabilities (including reasonable attorneys' fees) in connection with
any claim by any third party relating to any decisions or analyses made by
Lender while using any Data or the Service.
18. Audits, Access and Recordkeeping
(a) Audits and Access.
(i) DealerTrack shall provide to WFS in a timely manner the
following, at no cost to WFS:
- Annual report on internal controls to AICPA Statement of Auditing
Standards 70 "Reports of Processing of Transactions by Service
Organizations (known as SAS 70 Reports), for each center that
processes WFS transactions in accordance with the terms in this
Agreement
- If available, any internal audit reports on internal operating
controls at each center
21 of 32
that processes WFS transactions.
(ii) DealerTrack agrees that WFS, or its designated representatives,
shall have audit and access rights at reasonable times and upon
reasonable notice to:
- inspect the processing facilities and operating practices of
DealerTrack,
- review the policies and procedures of DealerTrack, and
- To the extent any such audit results in identification of
legitimate or agreed upon deficiencies, DealerTrack shall correct
such deficiencies, at its expense as soon as is practicable.
(b) Records Maintenance.
Each party shall at all times establish and maintain such books,
records and accounting practices as may be required by applicable state and
federal laws and regulations. DealerTrack agrees to maintain such books and
records for a minimum of 6 months after contract expiration or termination.
(c) Examination by and Reporting to Regulators.
By entering into this Agreement, DealerTrack agrees that the OTS and
relevant state regulatory agencies shall have the authority and
responsibility provided to the other regulatory agencies pursuant to the
Bank Service Corporation Act, 12 U.S.C. 1867(C), and applicable state law
and regulations relating to services performed by contract or otherwise.
DealerTrack shall only permit examinations by regulatory agencies or
release any reports, summaries and information contained in, or derived
from, the data in the possession of DealerTrack relating to WFS and its
Affiliates to regulatory agencies in accordance herewith and all applicable
laws and regulations. Except where notification is prohibited by applicable
law or regulation, each of the parties agrees to notify the other party in
writing in the event mat (i) any information is requested from such party
relating to this Agreement or the Services being provided hereunder by any
regulatory agency, or (ii) such party believes it is obligated to provide
any such information to any regulatory agency. Such notice shall be
delivered to the other party a reasonable period of time prior to
disclosure of any such information or the granting of any such access to
the extent feasible or concurrently with or immediately following any such
disclosure or access where prior notice is not feasible. WFS reserves the
right to intervene before anything is delivered to any regulatory agency to
prevent its release by lawful means but nothing herein shall be construed
as requiring DealerTrack to delay release of information to such regulatory
agency to allow time for such intervention if such release is mandated by
law and such agency demands immediate access or disclosure.
19. 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 of 32
20. Insurance. DealerTrack, within five (5) business days after the Effective
Date, shall procure and maintain, at its own expense, the required insurance of
the kinds and limits enumerated hereunder, with companies acceptable to Lender.
Lender 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
23 of 32
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;
and
i. such other insurance as may be required from time to time by notice from
Lender 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 to Lender 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, at Lender's sole option, DealerTrack shall immediately reimburse Lender for
the full amount of the same and/ or 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.
21. 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 20 shall survive the termination of this Agreement, whether by
expiration of time, operation of law, or otherwise.
22. 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. This Agreement supersedes all prior oral or written
representations, agreements, promises, or other communications, concerning or
relating to the subject matter of this Agreement.
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.
24 of 32
c. Headings. The captions to sections and subsections 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, postage prepaid, 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:
WFS Financial Inc
00 Xxxxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxxx
In the case of notices to DealerTrack:
XxxxxxXxxxx.xxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx 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, provided such notice
shall be effective only upon actual receipt.
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 upon prompt written notice to the other
party. 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
25 of 32
event the other party shall have the right to terminate this Agreement without
cause on sixty (60) 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. 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.
k. 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.
l. 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). If any Force Majeure
Event prevents or restricts DealerTrack's performance of the Service and
DealerTrack does not within three (3)
26 of 32
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.
m. 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.
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. LENDER / WFS FINANCIAL INC
BY: /s/ Xxxx X. X' Xxxx BY: /s/ Xxxxxx Xxxxx
--------------------------------- ------------------------------------
PRINT NAME: Xxxx X. X' Xxxx PRINT NAME: Xxxxxx Xxxxx
TITLE: President TITLE: President
DATE: 4/19/01 DATE: 4/13/01
BY: /s/ Xxxxx Xxxxxx BY: /s/ Xxxxxx Xxxxxxxxx
--------------------------------- ------------------------------------
PRINT NAME: Xxxxx Xxxxxx PRINT NAME: Xxxxxx Xxxxxxxxx
TITLE: Vice President TITLE: Vice President
DATE: 4/23/01 DATE: 04/13/01
27 of 32
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 WFS Financial, Inc. ("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of April 13, 2001 (the "Lender Agreement"); and
WHEREAS, DealerTrack and Lender desire to amend (i) amend Exhibit B
relating to fees and charges on a sliding scale tied to volume, (ii) provide
Lender with certain other rights as set forth in Section 3 hereto, (iii) amend
Section 9(a) (Term and Termination) to restrict DealerTrack's right to terminate
the Agreement and (iv) amend Section 19(a) (Insurance) to provide for a lower
insured limit for Errors & Omissions 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 Exhibit B.
(A) Exhibit B 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 "Agreement" in the
first sentence of the last paragraph of such Exhibit B.
(B) Exhibit B is hereby further amended by (i) deleting the phrase
"volume amount" in the last sentence of such Exhibit B 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 Exhibit B.
3. Product Placement Preferences and Audit Information.
(A) The following section is hereby added after Section 21(m) of the
Lender Agreement:
"22. Product Placement 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 Site the name, xxxx, logo, advertisement description of
products and services,
-1-
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 Affiliates, which is a stockholder of the Parent Company (a
"Stockholder Lender"); and
(ii) Notwithstanding anything to the contrary contained in
Section 22(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 22(a)(i) or 22(a)(ii).
(v) Nothing contained in this Section 22(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 22(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 the location of its franchised
DealerTrack Dealers.
-2-
(B) Section 18(a) of the Lender Agreement is hereby amended by adding
the following after 18(a)(ii):
"(iii) 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 Exhibit B 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 Exhibit B 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 Exhibit B 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 three (3) 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 (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
-3-
may be, except for cause as set forth in Section 9(b) below, for so long as the
Lender and/or 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 Exhibit
B) 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 19(a). Section 19(a) of the Lender Agreement
is hereby amended by deleting Section 19(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]
-4-
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
WFS FINANCIAL, INC.
/s/ Xxx Xxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxx
Title: Senior Executive Vice
President & Chief Financial
Officer
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 WFS
Financial, Inc. ("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of April 13, 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 amend the last paragraph of
Exhibit B 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 Exhibit B. Exhibit B of the Lender Agreement is hereby
amended by deleting the last paragraph of Exhibit B in its entirety and
replacing such paragraph 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."
3. 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.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts by
facsimile or
-1-
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: Xxxx X. X'Xxxx
Title: Chief Executive Officer &
President
WFS FINANCIAL, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
