Exhibit 10.37
LENDER INTEGRATION SUPPORT AGREEMENT
This DealerTrack Lender Integration Support Agreement (this "AGREEMENT") is made
as of this 1st day of September, 2005 by and between DealerTrack, Inc.
("DEALERTRACK"), with its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ -
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and First American CMSI Inc. ("CMSI"), with
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇.
BACKGROUND
DealerTrack operates "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇," a Web-based auto finance enabler,
which, among other things, facilitates automobile finance and lease interactions
and transactions between subscribing automotive dealers and subscribing
financial sources. CMSI, among other things, provides complete outsourcing
solutions, in-house software systems, and Internet-based services, to
subscribing financing sources, which manage front- and back-office operations
and automate end-to-end account and information processing for such financial
sources. Certain of CMSI's subscribing financing sources desire to subscribe to
and use the DealerTrack service. Use of the DealerTrack service requires the
development of an interface between DealerTrack's computer and CMSI's credit
processing system. Development of this interface requires the performance of
certain obligations by DealerTrack and the performance of other obligations by
CMSI. This Agreement sets forth the respective responsibilities of each party
with respect to the development and maintenance of the interface.
TERMS AND CONDITIONS
IN CONSIDERATION OF the mutual representations, warranties, covenants and other
agreements set forth herein, DealerTrack and CMSI, 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 day when the CMSI System first began
interfacing with the DealerTrack System to receive Data from a DealerTrack
Dealer and to transmit Data back to such DealerTrack Dealer from a Shared
Financial Institution.
(b) "Addendum" shall have the meaning set forth in Section 8 hereof.
(c) "Additional Products" shall have the meaning set forth in Section 8
hereof.
(d) "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 1(d).
(e) "Agreement" means this Lender Integration Support Agreement, as it may
from time to time be amended or supplemented by the mutual consent of the
parties or in accordance with its terms, and all exhibits and Addendums
attached to this Agreement, as they may from time to time be amended or
supplemented.
(f) "Basic Service" means DealerTrack's web-based, multi-lender system that
facilitates the transfer of Data from DealerTrack Dealers to DealerTrack
Financial Institutions and the transfer of Data back to such DealerTrack
Dealers with respect to credit applications.
(g) "CMSI" has the meaning set forth in the introductory paragraph.
(h) "CMSI Computer" means the computer(s) controlled and operated by CMSI
on which CMSI maintains the CMSI Software for the use of CMSI's ASP and
CMSI's Exchange customers.
(i) "CMSI Financial Institution" means a financial institution or other
financing source, which is a subscriber to the CMSI System.
(j) "CMSI Interface Components" means and consists of the Interface
equipment components for which CMSI is responsible as set forth in this
Agreement (including without limitation, the physical connections and
associated equipment between the CMSI Interface Server and the DealerTrack
Computer), the Interface software components for which CMSI is responsible
as set forth in this Agreement (but excluding, without limitation, any
Confidential Information or Intellectual Property of DealerTrack), and
CMSI's Interface Server.
(k) "CMSI's Interface Server" means the computer(s) controlled and operated
by CMSI on which the software components of the CMSI Interface Components
are maintained on the CMSI Computer.
(l) "CMSI 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 CMSI or CMSI's Affiliates.
(m) "CMSI Software" means, CMSI's credit underwriting software (whether
internally developed, or licensed, by CMSI) which processes and issues
decisions on credit applications transmitted by means of the Service and
all operating or system software installed on the CMSI Computer, whether or
not utilized by CMSI Financial Institutions (excluding, without limitation,
any Confidential Information or Intellectual Property of DealerTrack).
(n) "CMSI System Specifications" shall have the meaning set forth in
Section 3(b) hereof.
(o) "CMSI System" means and consists of the CMSI Interface Components, the
CMSI Software and the CMSI Computer, operated by CMSI for ASP and Exchange
customers.
(p) "Confidential Information" will have the meaning set forth in Section
14.
(q) "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
CMSI (or any CMSI User), (iii) credit application and contract status
information, prospect reports, dealer reserve status, retail and lease
rates, residual value information and payoff quotes, (iv) any third party
data (including, without limitation, value guide information) which may be
accessed, requested or sent to others by means of the Service, and (v) any
other information that is provided, directly or indirectly, to or through
the Service or transmitted through the Service, including, without
limitation, any electronic contracts or information provided, directly or
indirectly, to or through the Service or transmitted through the Service
with respect to Additional Products. DealerTrack may, in its sole
discretion, from time to time add additional data fields to, or delete
certain data fields from, the Service. Data entered on the Service in such
additional fields shall be included in the term "Data."
(r) "DealerTrack" has the meaning set forth in the introductory paragraph.
(s) "DealerTrack Computer" means the computer(s) controlled and operated by
DealerTrack on which DealerTrack maintains the DealerTrack Software.
(t) "DealerTrack Dealer" means an automobile dealer or other automobile
credit originator that is a subscriber to the Service.
(u) "DealerTrack Financial Institution" means a financial institution or
other financing source, which is a subscriber to the Service.
(v) "DealerTrack Interface Components" means and consists of the Interface
equipment components and the Interface software components for which
DealerTrack is responsible as set forth in this Agreement.
(w) "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,
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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.
(x) "DealerTrack Site" means the website(s) 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.
(y) "DealerTrack Software" means DealerTrack's software (whether internally
developed, licensed or owned by DealerTrack) which support the Service
and/or contain applications that are a part of the Service and all
operating or system software installed on the DealerTrack Computer.
(z) "DealerTrack System" means and consists of the DealerTrack interface
Components, DealerTrack Software and the DealerTrack Computer.
(aa) "Disclosing Party" will have the meaning set forth in Section 14.
(bb) "Documentation" means the system and user documentation for the
Service provided by DealerTrack to DealerTrack Financial Institutions
generally, as amended or supplemented by DealerTrack, in its sole
discretion, from time to time.
(cc) "Effective Date" means April 1, 2003.
(dd) "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).
(ee) "Initial Term" and "Renewal Term" shall have the meanings set forth in
Section 9(a).
(ff) "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 issued
patents, patent applications and disclosures), know-how, inventions, rights
of priority and trade secret rights, recognized in any country or
jurisdiction in the world.
(gg) "Interface" means and consists of the equipment and the software that
establishes, by means of the Service, the capability for the CMSI Computer
to receive Data from, and transmit Data to, the DealerTrack Computer.
(hh) "Interface Development Schedule" means the written schedule, if any,
attached hereto as Exhibit A (as revised from time to time in accordance
with the terms herein), developed and mutually agreed upon by DealerTrack
and CMSI 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.
(ii) "Interface Development Schedule Commencement Date" shall have the
meaning set forth in Section 3(a).
(jj) "Lender Requirements Document" means the document(s) (as revised from
time to time by DealerTrack, in its sole discretion) provided by
DealerTrack to CMSI describing the technical and business requirements,
which CMSI must meet in order to facilitate CMSI's and each CMSI Financial
Institution's utilization of the Service.
(kk) "Personnel" will have the meaning set forth in Section 14.
(ll) "Proceeding" will have the meaning set forth in Section 15.
(mm) "Receiving Party" will have the meaning set forth in Section 14.
(nn) "Service" means (a) the Basic Service; (b) any additional services
DealerTrack decides, in its sole discretion, to add to the Basic Service,
and (c) any Additional Product governed by an Addendum to which
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Shared Financial Institutions and DealerTrack are parties, and subject to
any payment and other terms and conditions in such Addendum.
(oo) "Shared Financial Institutions" means any CMSI Financial Institution
which is a DealerTrack Financial Institution.
(pp) "User" shall mean any employee or agent of a Shared Financial
Institution that is authorized to use the Service in accordance with the
applicable DealerTrack Lender Agreement and Section 6(g).
2. Subscription to the Service. DealerTrack hereby grants to CMSI, a limited,
non-transferable subscription to the Service in order to facilitate the transfer
of Data through the Interface from Shared Financial Institutions to the
DealerTrack System and vice-versa, and DealerTrack agrees to provide the Service
to CMSI for the term of this Agreement, for use by CMSI in the United States, in
accordance with the terms of this Agreement. As a prerequisite for CMSI to use
the Service, DealerTrack and CMSI developed and implemented the Interface in
accordance with Section 3 below, maintain the Interface in accordance with
Section 4 below and exercise their respective rights and obligations hereunder
in accordance with the responsibilities of each party with respect to the
ongoing operation and use of the Service as set forth in Sections 5 and 6 below,
and otherwise according to the terms and conditions of this Agreement.
3. Interface Use. With respect to the use of the Interface, DealerTrack and CMSI
shall perform their respective responsibilities as set forth in this Section 3.
(a) CMSI acknowledges that the sole purpose for DealerTrack's disclosure of
the Lender Requirements Document to CMSI is to allow CMSI to develop and
maintain the CMSI System in connection with CMSI's use of the Service under
the terms of this Agreement. CMSI shall develop and maintain the CMSI
Interface Components in accordance with the specifications, requirements,
standards and formats in the Lender Requirements Document ("CMSI SYSTEM
SPECIFICATIONS"). If the Lender Requirements Document was disclosed to CMSI
under a separate confidentiality/non-disclosure agreement, then such
disclosure is now governed by the terms of this Agreement, and the terms of
such confidentiality/non-disclosure agreement with respect to the subject
matter of this Agreement are hereby superseded by the terms of this
Agreement. The Lender Requirements Document shall be considered the
"Confidential Information" of DealerTrack, subject to Section 15 of this
Agreement.
(b) DealerTrack and CMSI shall cooperate reasonably and in good faith with
respect to such issues that may arise from time to time in connection with
the maintenance of and enhancement to 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. If CMSI
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.
4. Maintenance and Modifications. With respect to maintenance and modifications
to the Interface, the DealerTrack System and the CMSI System, the parties shall
perform their respective responsibilities as set forth in this Section 4.
(a) In the event that DealerTrack makes any generally released
modifications to DealerTrack Software, and such modifications make changes
to the CMSI System necessary or advisable, DealerTrack shall give CMSI at
least thirty (30) days prior written notice of the modifications; provided,
that, DealerTrack may give less notice if such modification is necessary to
comply with applicable law. With respect to such changes to the CMSI
System, in DealerTrack's discretion; (i) DealerTrack shall be responsible,
at its expense, for making necessary or advisable changes to the
DealerTrack System prior to releasing the modifications to such DealerTrack
Software, and (ii) CMSI shall be responsible, at its expense, for making
the necessary or advisable changes to the CMSI System. The parties shall
establish a mutually agreeable schedule for making such changes properly
and in a timely manner. The foregoing notwithstanding, DealerTrack shall
not be responsible for any interruption in CMSI's or any Shared Financial
Institution's use of the Service prior to CMSI's implementation of the
appropriate changes to the CMSI System or caused by CMSI's failure to
implement the appropriate changes to the CMSI System.
(b) If any Shared Financial Institution desires to subscribe to any
Additional Product, the parties will consult
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with each other as reasonably necessary to amend the Interface Development
Schedule (including, without limitation, by setting forth the parties'
respective responsibilities and the schedule for completion of such
responsibilities) with respect to the Interface development for such
Additional Product. CMSI shall be responsible for costs associated with
modification or further development of the CMSI Interface Components and
the CMSI System and DealerTrack shall be responsible for costs associated
with modification or further development of the DealerTrack Interface
Components and the DealerTrack System. Both parties shall proceed with
their respective responsibilities set forth in the amended 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 Interface development
so that the CMSI System is capable of interfacing with the DealerTrack
System so as to transmit or receive Data through the applicable Additional
Product component of the Service. DealerTrack may, in its sole discretion,
amend or modify the Lender Requirements Document to include requirements
associated with any Additional Product.
(c) In addition to changes to the CMSI System required as a result of a
generally released modification to the DealerTrack Software as set forth in
Section 4(a) or an Additional Product as set forth in Section 4(b), CMSI
shall be responsible, from time to time, for making necessary changes to
the CMSI System in order to maintain CMSI's and Shared Financial
Institutions' current level of functionality.
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) DealerTrack shall use commercially reasonable efforts to maintain the
DealerTrack System so that, subject to CMSI's performance of its
obligations under this Agreement, the CMSI System shall be capable of
receiving Data from, and transmitting Data to, the DealerTrack Computer.
(b) DealerTrack shall use commercially reasonable efforts to provide
appropriate resources including technical, implementation and program
management support to establish and maintain the DealerTrack Site and the
Service.
(c) DealerTrack shall use commercially reasonable efforts to develop,
implement and maintain back-up procedures and systems, redundant systems
and disaster recovery systems relating to the DealerTrack System.
(d) DealerTrack shall use commercially reasonable efforts to keep the
DealerTrack System and the DealerTrack Site free from intentionally
injurious instructions (e.g., systems "viruses") that are designed to
modify, damage, delete or disable the CMSI System.
(e) DealerTrack shall use commercially reasonable efforts to keep the
DealerTrack System and the DealerTrack Site free from code that could
trigger a harmful or inadvertent modification, shut down or disablement of
the CMSI System.
(f) DealerTrack shall use commercially reasonable efforts to ensure that
the DealerTrack System shall be safeguarded against "hacker" intrusions.
(g) In the event DealerTrack falls to comply with any provision of this
Section 5, CMSI shall promptly notify DealerTrack. In such an event, CMSI's
sole and exclusive remedy shall be to cease accepting Data through and
submitting Data to the Service until DealerTrack complies with this Section
5; provided that CMSI shall not exercise its right to cease accepting Data
through and submitting Data to the Service with respect to a given Shared
Financial Institution until such time as such given Shared Financial
Institution expressly grants such right to CMSI in writing. The foregoing
sets forth DealerTrack's sole and exclusive liability with respect to a
failure to comply with this Section 5.
6. Responsibilities of CMSI Relating to Use of the Service. In addition to
CMSI's responsibilities under Section 3 and 4 above, with respect to CMSI's use
of the Service, CMSI shall perform its responsibilities in accordance with this
Section 6.
(a) CMSI shall use commercially reasonable efforts to maintain the CMSI
System so that, subject to DealerTrack's performance of its obligations
under this Agreement, the CMSI System shall be capable of receiving Data
from, and transmitting Data to, the DealerTrack Computer.
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(b) CMSI shall use commercially reasonable efforts to ensure that any
changes to the CMSI System do not Interrupt (i) the transfer of Data in
accordance with the Lender Requirements Document between the DealerTrack
Computer and the CMSI Computer, or (ii) the processing of Data hereunder.
(c) CMSI shall operate and manage the CMSI System in such a manner as to
keep the CMSI 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, CMSI
shall promptly terminate those processes causing such degradation or
adverse impact and shall implement any necessary changes to the CMSI System
to prevent such degradation or adverse impact from reoccurring and
DealerTrack shall cooperate in good faith with CMSI as reasonably
appropriate to assist CMSI in connection with CMSI's obligations under this
Section 6(c). Notwithstanding the foregoing, DealerTrack shall have the
right to temporarily terminate CMSI's use of the Service until such changes
are made.
(d) CMSI acknowledges and agrees that it will not have any access to the
Service or the DealerTrack Site. CMSI shall be solely responsible for any
security measures it wishes to take and DealerTrack shall have no liability
for any adverse impact that such measures may have on CMSI's ability to
utilize and/or benefit from the functionality of the Service or for CMSI's
failure to implement security measures.
(e) CMSI will use commercially reasonable efforts to prevent unauthorized
access to restricted areas of its servers and any databases or other
sensitive material generated from or used in conjunction with the CMSI
System. In addition, CMSI will promptly notify DealerTrack of any known
material security breaches or holes in the CMSI System. CMSI agrees to
implement all security measures that DealerTrack may reasonably request
CMSI to implement. DealerTrack shall have the right to conduct at its
expense upon reasonable notice, and no more often than once per calendar
year, an audit of CMSI's System, including the security systems with
respect thereto, during normal business hours. CMSI shall cooperate in good
faith with any such audit.
(f) CMSI shall use commercially reasonable efforts to develop, implement
and maintain any and all back-up procedures and systems, redundant systems
and disaster recovery systems relating to the CMSI System.
(f) CMSI shall use commercially reasonable efforts to assist Shared
Financial Institutions in their ability to comply with DealerTrack's
standard procedures with respect to the enabling and disabling of
DealerTrack Dealers to transmit credit applications and other Data to CMSI,
on behalf of such Shared Financial Institutions, by means of the Service.
(g) Subject to Section 19(m) of this Agreement, CMSI acknowledges and
agrees that CMSI will deny access to the Service to Users that fail to
comply with any standard Terms of Use posted on the DealerTrack Site, as
amended or updated from time to time by DealerTrack in its sole discretion
("TERMS OF USE"). Only Shared Financial Institutions and Users who have
agreed to be bound to the Terms of Use and the terms of this DealerTrack's
form of Lender Agreement will be permitted by DealerTrack to access the
DealerTrack Site.
(h) CMSI shall use commercially reasonable efforts to keep the CMSI System
and any Data submitted by CMSI to or through the Service free from
intentionally injurious Instructions (e.g., systems "viruses") that are
designed to modify, damage, delete or disable the DealerTrack Site or the
DealerTrack System.
(i) CMSI shall use commercially reasonable efforts to keep the CMSI System
free from code that could trigger a harmful or inadvertent modification,
shut down or disablement of the DealerTrack Site or the DealerTrack System.
(l) CMSI shall use commercially reasonable efforts to ensure that the CMSI
System shall be safeguarded against "hacker" intrusions.
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. Either
party may change the project authority and/or alternate at any time by
notifying the other party. DealerTrack hereby designates ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as
its primary
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contact and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as its alternate. CMSI hereby designates ▇▇▇
▇▇▇▇▇ as its primary contact and ▇▇▇▇▇▇ ▇▇▇▇▇▇ as its alternate.
(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 by means of the Service, other than those
included as part of the Basic Service ("ADDITIONAL PRODUCTS"). In the event that
CMSI elects to subscribe to or license any Additional Product, CMSI agrees to
subscribe to or license such Additional Product in accordance with the terms
herein and any applicable terms communicated by DealerTrack in an addendum or
other writing agreed upon by the parties (including, without limitation,
click-wrap agreements communicated via the DealerTrack Site) (any of the
foregoing, an "ADDENDUM"), and shall be responsible for and shall pay to
DealerTrack the additional applicable fees and charges, if any.
9. Term and Termination.
(a) The terms of this Agreement shall begin on the Effective Date, and
shall continue for a period through and including December 31, 2007 (the
"INITIAL TERM") unless sooner terminated as provided below. Upon expiration
of the Initial Term, unless terminated by either party by notice of
termination given not less than sixty (60) days prior to the expiration of
the Initial Term, this Agreement shall automatically renew for successive
one (1) year terms (each a "RENEWAL TERM"). During any Renewal Term, either
party may terminate this Agreement, effective at the end of such Renewal
Term by notice of termination given not less than sixty (60) days prior to
the expiration of such Renewal Term.
(b) This Agreement may be terminated by a party for cause immediately by
written notice upon the occurrence of any of the following events: (i) if
the other ceases to do business, or otherwise terminates its business
operations; (ii) if the other 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 breaches any material provision of this Agreement and fails to
fully cure such breach within thirty (30) days of written notice describing
the breach; or (iv) if the other becomes insolvent, or seeks protection
under any bankruptcy, receivership, trustee, creditor's arrangement
composition or comparable proceeding, or if any such proceeding is
instituted against the other and not dismissed within thirty (30) days.
(c) Notwithstanding anything to the contrary in Section 9(b), (i) CMSI
shall not terminate this Agreement so long as any Shared Financial
Institution is subscribing to the Service via the CMSI System and (ii) this
Agreement shall automatically terminate if during any Renewal Term the
parties have no Shared Financial Institutions.
10. Payments and Payment Terms. After the Initial Term, DealerTrack reserves the
right, in its sole discretion, to change any fees and charges associated with
the Service (including any fees and charges associated with Additional Products
subscribed to hereunder) upon sixty (60) days prior written notice to CMSI;
provided, however, if any fee or charge set forth in this Agreement is increased
or a new fee or charge is imposed on CMSI by DealerTrack, CMSI shall have the
right to terminate this Agreement with respect to such product or service that
such increase or new fee or charge relates by providing written notice to
DealerTrack within thirty (30) days of receipt of the notice of increase or new
fees from DealerTrack. If CMSI fails to pay any amount due by the due date, late
charges of the lesser of 1 1/2% per month or the maximum amount permissible by
applicable law shall also become due and payable.
11. Licenses; Proprietary Rights.
(a) In accordance with the terms of this Agreement and for the term hereof,
DealerTrack grants CMSI a non-exclusive and non-transferable license to use
the Service in the United States for the sole purpose of providing
integration support for Shared Financial Institutions. CMSI shall have no
right to make any changes or modifications to the Service, except as
directed and approved by DealerTrack in writing. This license shall only
apply to Additional Products included in the Service to the extent no
differing or more restrictive license is set forth in an applicable
Addendum. CMSI covenants and agrees not to market, sell or license
integration between the Service and any Shared Financial Institution's
dealer management system to any third party without the prior written
consent of DealerTrack.
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(b) In accordance with the terms of this Agreement and for the term hereof,
DealerTrack grants CMSI a non-exclusive and non-transferable license to use
the DealerTrack Marks for the sole purposes of (i) identifying that CMSI is
a subscriber to the Service on behalf of Shared Financial Institutions
(whether in print, electronically or otherwise), (ii) performing the
obligations set forth in Section 6(1) hereof and (iii) for any other
purpose only with the prior written consent of DealerTrack.
(c) In accordance with the terms of this Agreement and for the term hereof,
CMSI grants DealerTrack and DealerTrack Affiliates a non-exclusive and
non-transferable license to use the CMSI Marks for the sole purposes of (i)
identifying that CMSI is a subscriber to the Service on behalf of Shared
Financial Institutions (whether in print, electronically or otherwise),
(ii) performing its obligations under this Agreement and (iii) for any
other purpose only with the prior written consent of CMSI.
(d) CMSI understands 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
Lender Requirements Document, the DealerTrack System, the DealerTrack Site
and any other equipment, software, hardware, materials or information
provided by DealerTrack, including any enhancements, upgrades,
improvements, changes, modifications, revisions or derivative works made to
the same from time to time (the "DEALERTRACK PROPERTY"), and CMSI shall
have no ownership or use rights therein except as set forth in this
Agreement. CMSI agrees (and CMSI agrees to cause its Users to agree), upon
DealerTrack's request and at DealerTrack's expense, to assign to
DealerTrack in writing any proprietary interest that may be conferred upon
CMSI by law in any such enhancements, upgrades, improvements, changes,
revisions, modifications and derivative works to the DealerTrack Property.
(e) It is understood that CMSI and its Personnel may have feedback,
suggestions or comments that may be incorporated into the Service.
DealerTrack may, in its sole discretion, decide to incorporate some or all
of this feedback, suggestions, or comments into the Service.
Notwithstanding anything to the contrary herein, CMSI and its Personnel
acknowledge and understand that DealerTrack and its licensors shall own
exclusively and in perpetuity any and all rights, title and interest in and
to Service, including any and all versions of Service and any Additional
Products, including any enhancements thereto conceived, made or implemented
during all phases of development and release of the Service, and including
any enhancements suggested by CMSI or its Personnel. CMSI hereby assigns
(and CMSI agrees to cause its Users to assign) all of their right, title
and interest in any such enhancements suggested to DealerTrack and CMSI
will (and CMSI agrees to cause its Users to) execute such documents as may
be deemed reasonably necessary to accomplish the objectives of this
Section.
(f) DealerTrack understands and agrees that CMSI is the exclusive owner of
and holds and shall retain, all right, title and interest in and to the
CMSI Intellectual Property, the CMSI Marks and the CMSI System and any
other equipment, software, hardware, materials or information provided by
CMSI, including any enhancements, upgrades, improvements, changes,
modifications, revisions or derivative works made to the same from time to
time (the "CMSI PROPERTY"), and DealerTrack shall have no ownership or use
rights therein except as set forth in this Agreement. DealerTrack agrees,
upon CMSI's request and at CMSI's expense, to assign to CMSI 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 CMSI Property.
(g) All such use of the proprietary marks of a party shall comply with any
reasonable written policies and guidelines furnished by the owner thereof
from time to time concerning the use of the proprietary marks.
Notwithstanding anything to the contrary herein, no party shall use the
other party's proprietary marks in a manner that (i) disparages the other
party or its products or services or (ii) portrays the other party or its
products or services in a false or poor light. Subject to Sections 11(b)
and 11(c) hereof, at the owner's request, the other party will promptly
alter or discontinue any particular use of the DealerTrack Marks or CMSI
Marks, as applicable.
(h) Except as expressly permitted under this Agreement, CMSI agrees that it
will not, or permit any of its Personnel or any third party to, at any
time, without written permission of DealerTrack, (i) copy, duplicate or
grant permission to the Service or any part thereof; (ii) create, attempt
to create, or grant permission to the source program and/or object program
associated with any DealerTrack Software or other software component of the
Service; or (iii) decompile, disassemble or reverse engineer any software
component of the Service for any reason, including, without limitation, to
develop functionally similar computer software or services, or modify,
alter or delete any of the copyright notices embedded in or affixed to the
copies of any components of the Service.
8
(i) 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 CMSI and the third party licensor, the license of CMSI to
such third party software and/or data shall be defined and limited by the
license to DealerTrack by such third party and the license to the Service
granted by DealerTrack under this Agreement. CMSI specifically acknowledges
that the licensors of such third party software and/or Data shall retain
all ownership rights thereto, and CMSI agrees that it shall not, or permit
any of its Personnel or any third party to, (i) decompile, disassemble or
reverse engineer such third party software or otherwise use such third
party software for any reason except as expressly permitted herein; (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.
(j) CMSI acknowledges that the right or ability of DealerTrack to license
DealerTrack Financial Institutions 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 financing sources and
third-party service providers other than CMSI, the right to use the Service
and DealerTrack Marks under separate agreements. CMSI also agrees that
DealerTrack shall be free to transmit Data to third-parties, other than
CMSI. DealerTrack shall have no liability to CMSI for any such action.
12. Representations, Warranties by DealerTrack.
(a) DealerTrack represents and warrants to CMSI as of the date hereof that:
(i) DealerTrack is duly organized and is validly existing as a
corporation under the laws of the state of its incorporation and is duly
licensed where required or is otherwise qualified in each state in which it
transacts business.
(ii) DealerTrack has the requisite power, authority and legal right to
execute and deliver 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 have
been duly authorized by all necessary and appropriate corporate action on
the part of DealerTrack.
(iii) 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 or other similar laws (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 (A) its
certificate of incorporation or by-laws; (B) 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 (C) any agreement to which
DealerTrack is a party or by which its property is bound.
(iv) 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.
(v) 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 (A) seeking to assert the
invalidity of this Agreement; or (B) 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.
(vi) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION
12(a) ARE THE ONLY WARRANTIES MADE BY DEALERTRACK. SUCH WARRANTIES ARE IN
LIEU OF, AND DEALERTRACK EXPRESSLY HEREBY DISCLAIMS, ALL OTHER WARRANTIES,
EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
NONINFRINGEMENT, OR FITNESS FOR SECURITIZATION OR OTHER SECONDARY FINANCING
TRANSACTIONS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DEALERTRACK
SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY (i) THAT THE SERVICE
WILL PERFORM WITHOUT INTERRUPTION OR BE ERROR-FREE, (ii) THAT IT
9
MEETS CMSI'S OR SHARED FINANCIAL INSTITUTIONS' REQUIREMENTS, OR (iii) THAT
ANY OR ALL OF THE DATA PROVIDED THROUGH THE SERVICE IS ACCURATE, UP-TO-DATE
OR COMPLETE. ALL DATA AND INFORMATION PROVIDED THROUGH THE SERVICE IS
PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, WITHOUT EXPRESS OR IMPLIED
WARRANTIES OF ANY KIND.
(b) In addition to any other agreements or covenants by DealerTrack herein,
DealerTrack covenants and agrees as follows during the term of this
Agreement:
(i) DealerTrack 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.
(ii) In connection with carrying out its obligations contained in this
Agreement, DealerTrack shall comply at all times with all applicable
federal and state laws, rules and regulations.
(iii) DealerTrack's use of any material, product or other aspect of
any technology, trade secret or other Intellectual Property hereunder will
not infringe on or violate any U.S. patent, copyright, trade secret,
trademark or other proprietary right of any third party, or be libelous,
defamatory or illegal.
13. Representations, Warranties and Covenants by CMSI.
(a) CMSI represents and warrants to DealerTrack as of the date hereof that:
(i) CMSI is duly organized and validly exists as a corporation under
the laws of the state of its incorporation and is duly licensed where
required or is otherwise qualified in each state in which it transacts
business.
(ii) CMSI has the requisite power, authority and legal right to
execute and deliver 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
CMSI. The execution, delivery and performance of this Agreement have been
duly authorized by all necessary and appropriate corporate action on the
part of CMSI.
(iii) This Agreement has been duly authorized and executed by CMSI and
is valid, binding and enforceable against CMSI in accordance with its
terms, except that such enforcement may be subject to bankruptcy or other
similar laws (whether statutory, regulatory or decisional) now or hereafter
in effect relating to creditor's rights generally, and the execution,
delivery and performance by CMSI of this Agreement does not conflict with
any term or provision of (A) its certificate of incorporation or by-laws;
(B) any law, rule, regulation, order, judgment, writ, injunction or decree
applicable to CMSI of any court, regulatory body, administrative agency or
governmental body having jurisdiction over CMSI; or (C) any agreement to
which CMSI is a party or by which its property is bound.
(iv) 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 CMSI of this Agreement.
(v) There is no action, proceeding or investigation pending or, to the
best knowledge of CMSI, threatened against it before any court,
administrative agency or other tribunal (A) seeking to assert the
invalidity of this Agreement; or (B) 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.
(b) In addition to any other agreements or covenants by CMSI herein, CMSI
and its Personnel covenant and agree as follows during the term of this
Agreement,
(i) CMSI 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.
(ii) In connection with carrying out its obligations contained herein,
CMSI shall comply at all times with all applicable federal and state laws
and regulations.
10
(iii) No material, product or other aspect of any technology, trade
secret or other Intellectual Property or Data submitted to or through the
Service by CMSI or its Users will infringe on or violate any U.S. patent,
copyright, trade secret, trademark or other proprietary right of any third
party, or be libelous, defamatory or illegal.
14. Infringement Claims of Third Parties. Notwithstanding anything to the
contrary in this Agreement:
(a) If the Service and/or the DealerTrack Marks are, or in DealerTrack's
sole discretion are likely to become, subject to a claim of infringement,
DealerTrack, at its option and expense, shall either (i) procure for CMSI a
license or a 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 either party may terminate this
Agreement by notice to other party. Except for the Indemnity obligations
set forth in Section 16(a), the foregoing shall be CMSI's sole and
exclusive remedy and DealerTrack's sole and exclusive obligation with
respect to any infringement claims relating to the Service and/or the
DealerTrack Marks.
(b) DealerTrack will have no obligation with respect to any actual or
threatened infringement claim based in whole or in part upon (i) the CMSI
System, (ii) any enhancements, upgrades or modifications to the Service
and/or the DealerTrack Marks made by CMSI, or any party that CMSI
authorizes, directs or permits to make such enhancements, upgrades or
modifications, or (iii) CMSI's or its Users' failure to use the Service
and/or the DealerTrack Marks in accordance with this Agreement or the
Documentation.
15. Confidentiality.
(a) Confidential Information. "CONFIDENTIAL INFORMATION" shall mean
nonpublic information of DealerTrack, DealerTrack Dealers, CMSI, and Shared
Financial Institutions 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 in writing, (b)
information traditionally recognized as proprietary trade secrets or
reasonably understood to be confidential, (c) all forms and types of
financial, business, scientific, technical, economic, or engineering
information including, without limitation, patterns, plans, compilations,
program devices, formulas, designs, prototypes, methods, techniques,
processes, procedures, programs, or codes, and (d) "nonpublic personal
information" of a "consumer" as such terms are defined in 15 U.S.C.
Sections 6809 and applicable regulations; 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 and
through no breach of any confidentiality obligation owed to the Disclosing
Party; (b) has been in Receiving Party's possession without restrictions on
disclosure prior to disclosure by the Disclosing Party; (c) has been
developed by or become known to Receiving Party without access to any
Confidential Information of the Disclosing Party and without breach of a
confidentiality obligation owed to Disclosing Party and outside the scope
of any agreement with Disclosing Party; or (d) is obtained rightfully from
third parties not bound by an obligation of confidentiality.
Notwithstanding anything in this Agreement to the contrary, the Receiving
Party shall comply with all privacy and data protection laws, rules and
regulations which are or which may in the future be applicable to the
Service. Without limiting the generality of the preceding sentence, the
Receiving Party agrees that it will not disclose to any other party any
nonpublic personal information which it receives directly or indirectly
through the Service, except to perform the Service in accordance with this
Agreement or in compliance with applicable laws. Notwithstanding anything
to the contrary herein, to the extent permitted by applicable law,
DealerTrack may use and disclose any Confidential Information in the
aggregate; provided, however, that any such use shall not contain any
information identifying CMSI, any Shared Financial Institution or any
consumer. For purposes of this subsection, the terms "nonpublic personal
information" shall have the meanings set forth in Section 509 of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (P.L. 106-102) (15 U.S.C. Section 6809) and
implementing regulations thereof.
(b) Treatment of Confidential Information. Receiving Party shall treat the
Confidential Information of the other party as strictly confidential with
at least the same degree of care as Receiving Party uses for its own
confidential information of similar importance, and in no event less than a
reasonable degree of care. Receiving Party shall not use, duplicate, copy,
transmit or otherwise disseminate or permit to be used, duplicated, copied,
transmitted or otherwise disseminated the Confidential Information of the
other party at any time prior to or after the termination of this
Agreement, except as expressly permitted under this Agreement. Except as
expressly
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provided herein, 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. Receiving
Party shall promptly notify Disclosing Party in writing of any unauthorized
use or disclosure of any Confidential Information.
(c) Disclosure to Employees and other Parties. Receiving Party shall not
disclose any Confidential Information of the other party except to Users or
other employees and Independent contractors ("PERSONNEL"), (i) who have a
need to know such information for the purposes set forth in this Agreement
and only to the extent such Personnel have such a need to know. Receiving
Party shall be liable for the actions of such 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; or
(iii) on a "need-to-know" basis under an obligation of confidentiality to
its legal counsel, accountants, banks and other financing sources and their
advisors. In the event that Receiving Party is required to disclose
Confidential Information for reasons enumerated clauses (i) and (ii) of the
prior sentence, Receiving Party shall give Disclosing Party notice in a
reasonable amount of time prior to Receiving Party's disclosure of
Confidential Information to allow Disclosing Party to protect its
proprietary interest therein and shall use commercially reasonable efforts
to minimize such disclosure and consult with and assist the other party in
obtaining a protective order prior to such disclosure.
(d) Return of Confidential Information. Upon termination or expiration of
this Agreement, or upon Disclosing Party's earlier request, Receiving Party
shall promptly destroy all of Disclosing Party's Confidential Information,
any copies or partial copies thereof and material containing Disclosing
Party's Confidential Information (except for Disclosing Party's
Confidential Information that is transmitted by or through the Service) 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
Confidential 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. DealerTrack may also retain
Confidential Information for use in the aggregate as set forth in Section
15(a) above. The obligations under this Agreement, however, shall survive
such occurrence.
(e) Injunctive Relief. Each of the Parties acknowledges that any use or
disclosure of Confidential Information in violation of this Agreement will
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 and obtain 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.
16. Indemnification.
(a) Each party hereby agrees to indemnify, defend and hold harmless the
other party, 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 (including expert fees), asserted by a third party
(each, a "PROCEEDING"), arising, directly or indirectly, from or in
connection with:
(i) a breach or alleged breach of any representation, warranty,
covenant or other obligation set forth in this Agreement by the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees or agents;
(ii) a breach by the indemnifying party of any agreement between the
indemnifying party and any Shared Financial Institution; or
(iii) gross negligence, or willful or wanton behavior of the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees or agents.
(b) Promptly after receipt by an indemnified party under Section 16(a) of
notice of the commencement of any Proceeding against it, such indemnified
party will, give notice to the indemnifying party of the commencement of
12
such Proceeding, but the failure to notify the indemnifying party will not
relieve the indemnifying party of any liability that it may have to any
indemnified party, except to the extent that the indemnifying party
demonstrates that the defense of such action is prejudiced by the
indemnified party's failure to give such notice.
(c) If any Proceeding referred to in clause (a) is brought against an
indemnified party and it gives notice to the indemnifying party of the
commencement of such Proceeding, the indemnifying party will be entitled to
participate in such Proceeding and, to the extent that it wishes (unless
the indemnifying party is also a party to such Proceeding and the
indemnified party determines in good faith that joint representation would
be inappropriate) to assume the defense of such Proceeding with counsel
satisfactory to the indemnified party and, after notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such Proceeding, the indemnifying party will not, as long as it
diligently conducts such defense, be liable to the indemnified party under
this Section 16 for any fees of other counsel or any other expenses with
respect to the defense of such Proceeding, in each case subsequently
incurred by the indemnified party in connection with the defense of such
Proceeding. If the indemnifying party assumes the defense of a Proceeding
no compromise or settlement of such Proceedings may be effected by the
indemnifying party without the indemnified party's consent, which shall not
be unreasonably withheld, unless (i) there is no finding or admission of
any violation of law or any violation of the rights of any person and no
effect on any other claims that may be made against the indemnified party
and (ii) the indemnified party will have no liability with respect to any
compromise or settlement of such claims effected without its consent.
(d) Notwithstanding the foregoing, if an indemnified party determines in
good faith that there is a reasonable probability that a Proceeding may
adversely affect it or its Affiliates other than as a result of monetary
damages for which it would be entitled to indemnification under this
Agreement, the indemnified party may, by notice to the indemnifying party,
assume the exclusive right to defend, compromise, or settle such
Proceeding, but the indemnifying party will not be bound by a determination
of a Proceeding so defended or any compromise or settlement effected
without its consent (which may not be unreasonably withheld).
17. Limitation Of Liability.
(a) EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS SET FORTH IN THIS
AGREEMENT, 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 BREACH OF SECTION 15.
(b) EXCEPT FOR THE PARTIES INDEMNITY OBLIGATIONS SET FORTH IN THIS
AGREEMENT, IN NO EVENT SHALL DEALERTRACK'S LIABILITY FOR ANY DAMAGES IN ANY
ACTION, HOWEVER BASED, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
EXCEED THE FEES AND CHARGES PAID OR DUE TO DEALERTRACK UNDER THIS
AGREEMENT.
(c) IN THE EVENT OF THE LOSS OF OR DAMAGE TO ANY DATA ON THE DEALERTRACK
COMPUTER OR DEALERTRACK SITE OR IN DATA TRANSFERS BETWEEN THE CMSI
COMPUTER, ANY DEALERTRACK DEALERS' TERMINALS/COMPUTERS, AND THE DEALERTRACK
COMPUTER, DUE TO A CAUSE FOR WHICH DEALERTRACK IS RESPONSIBLE, DEALERTRACK
SHALL ALLOW CMSI AND SHARED FINANCIAL INSTITUTIONS TO RE-ENTER THE LOST OR
DAMAGED DATA ON THE DEALERTRACK COMPUTER WITHOUT ANY ADDITIONAL FEES
ACCRUING TO DEALERTRACK WHICH SHALL CONSTITUTE CMSI'S SOLE REMEDY IN
CONNECTION WITH SUCH LOSS AND/OR DAMAGE.
(d) CMSI AGREES THAT IT HAS AUTHORITY FROM APPLICABLE SHARED FINANCIAL
INSTITUTIONS TO AUTHORIZE DEALERTRACK TO TRANSMIT DATA TO CMSI FROM
DEALERTRACK DEALERS, OR OTHERWISE, DEALERTRACK SHALL HAVE NO DUTY TO VERIFY
THE CONTENT OR ACCURACY OF, OR IN ANY MANNER TO ANALYZE, DATA. DEALERTRACK
IS NOT ACTING AS A CREDIT BUREAU REPORTING AGENCY IN AND OF ITSELF, AND
CMSI AND SHARED FINANCIAL INSTITUTIONS ARE TO REFER TO THE SPECIFIC CREDIT
BUREAU(S) WHEN MAKING REFERENCE TO ANY CREDIT REPORTS. AS BETWEEN
DEALERTRACK AND CMSI, CMSI 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 CMSI UPON ANY DATA OR THE SERVICE SHALL NOT DIMINISH
THAT RESPONSIBILITY,
13
AND CMSI 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 CMSI OR A SHARED FINANCIAL INSTITUTION
WHILE USING ANY DATA OR THE SERVICE.
(e) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DEALERTRACK
SPECIFICALLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATING TO
ANY ACTIONS BY A DEALERTRACK DEALER, OR ANY BREACH BY A DEALERTRACK DEALER
OF ANY AGREEMENT BETWEEN SUCH DEALERTRACK DEALER AND A SHARED FINANCIAL
INSTITUTION OR DEALERTRACK.
18. Taxes and Other Fees. Except for franchise taxes and taxes based upon the
net income and personal property of DealerTrack, all taxes or other assessments
imposed by governmental authorities, based upon CMSI's use of either the
Service, or this Agreement (including without limitation, sales and use taxes)
are the obligation of CMSI, whether such taxes are now or hereafter imposed.
CMSI shall be liable for all collection agency fees and reasonable attorneys'
fees payable by DealerTrack in connection with CMSI's performance of its payment
obligations set forth in this Agreement.
19. Miscellaneous.
(a) Entire Agreement. This Agreement, the Terms of Use and any addendums or
additional terms executed by the Parties (concurrently or subsequent to the
Effective Date) 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 CMSI in any one or more instances to
insist upon strict performance of any of the terms or provisions of this
Agreement will not be construed as a waiver or relinquishment, to any
extent, of the right to assert or rely upon any such terms or provisions on
any future occasion.
(c) Headings. The captions to sections of this Agreement are for
convenience of reference only and do not in any way limit or amplify the
terms or conditions hereof.
(d) Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, such provision or
requirement will be enforced only to the extent it is not in violation of
such law or is not otherwise unenforceable and all other provisions and
requirements of this Agreement will remain in full force and effect.
(e) Notices. Where notice, approval or similar action by either party is
permitted or required by any provision of this Agreement, such action shall
not be unreasonably delayed or withheld. Any notice, demand or other
communication required or permitted under the terms of this Agreement shall
be in writing and shall be made by Federal Express, Airborne Express or
other similar overnight delivery service, or certified or registered mail,
return receipt requested. A notice shall be deemed to be received by the
addressee: one (1) business day after sending, if sent by overnight
delivery service; 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 CMSI:
First American CMSI Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
In the case of notices to DealerTrack:
DealerTrack, Inc.
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▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, - ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. - ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Any party to this Agreement may from time to time change its address for
notification purposes by giving the other prior written notice of the new
address and the date upon which it will become effective.
(f) Successors and Assigns. This Agreement may not be assigned by either
party without the prior written consent of the other party, and any
attempted unauthorized assignment will be void. 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 that obtains or to which that party
transfers a controlling interest in such party's voting securities or
assets; provided, however, that CMSI may not assign this Agreement in any
such case to any competitor of DealerTrack, without DealerTrack's prior
written consent.
(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. 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
or Shared Financial Institutions, 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. Any dispute that arises under or relates to this Agreement shall
be resolved in the state or federal courts located in Nassau County, New
York and the parties expressly waive any challenge to the jurisdiction or
venue of such courts.
(i) Nondisclosure of Terms. CMSI agrees that the terms of this Agreement
are Confidential Information of DealerTrack, and CMSI shall not disclose
any of the terms hereof to any third party (except for disclosure
reasonably made to legal representatives, financial advisors, and
accountants) without the prior written consent of DealerTrack or as may be
required by CMSI to comply with applicable federal and state laws or
regulations.
(j) Consents and Approvals. Consents and approvals, when required by this
Agreement, will not be unreasonably withheld, delayed, or conditioned.
(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
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detail (to be confirmed in writing within two days of the inception of such
delay). 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
this Agreement or CMSI's obligation to pay fees and charges pursuant to
Section 10 hereof.
(m) Interpretation of Documents. In the event of a conflict between this
Agreement and the Terms of Use, the terms of this Agreement shall control.
In the event of a conflict between this Agreement and an Addendum, the
terms of the Addendum shall control.
(n) Survival. Each party's obligations under Sections 10, 11, 15, 16, 17,
18 and 19 shall survive any expiration or termination of this Agreement.
(o) Rules of Construction. For purposes of this Agreement, except as
otherwise herein expressly provided or unless the context otherwise
requires:
(i) The terms defined in this Agreement include the plural as well as
the singular, and the use of any gender herein shall be deemed to include
the other gender or no gender;
(i) References to "Sections" and other subdivisions without reference
to a document are to Sections and other subdivisions of this Agreement;
(ii) A reference to a "clause" without further reference to a Section
is reference to such clause as contained in the same Section in which the
reference appears, and this rule shall apply to their subdivisions;
(iii) The words "herein", "hereof", "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
provision; and
(iv) The term "include" or "including" shall mean without limitation
by reason of enumeration.
* * * * *
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IN WITNESS WHEREOF, the parties to this Agreement have executed this
Agreement effective as of the day and year first written above.
DEALERTRACK, INC. FIRST AMERICAN CMSI
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President & CEO Title: President
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