CONFIDENTIAL TREATMENT REQUESTED BACK-UP PROCESSING AGREEMENT between CSC Logic, Inc. and Prosper Funding LLC November 21, 2012 CSC Logic, Inc. A Subsidiary of Computer Sciences Corporation Irving, Texas 75063
CONFIDENTIAL TREATMENT REQUESTED
CSC Logic, Inc.
and
November 21, 2012
CSC Logic, Inc.
A Subsidiary of Computer Sciences Corporation
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0X
Xxxxxx, Xxxxx 00000
(000) 000-0000
This Back-up Processing Agreement (this “Agreement”) is entered into as of the 21st day of November, 2012 (the “Effective Date”) by and among CSC Logic, Inc., a Texas corporation (“CSC Logic”), and Prosper Funding LLC, a Delaware limited liability company. As used in this Agreement, “Party” means CSC Logic or PFL; “Parties” means CSC Logic and PFL.
WHEREAS, CSC Logic is in the business of performing back-up loan servicing duties;
WHEREAS, CSC Logic and Prosper Marketplace, Inc., a Delaware Corporation (“PMI”) have entered into a Processing Agreement, dated as of January 1, 2009, pursuant to which CSC Logic performs certain back-up loan servicing duties for PMI (as amended and restated through the date hereof, the “Existing Processing Agreement”);
WHEREAS, PMI may transfer to PFL the on-line loan platform used by PMI to originate borrower loans and issue notes to lenders to fund such loans (the “Platform”), all loans (the “PMI Borrower Loans”) owned by PMI as of the date of such transfer (the “Transfer Date”) all notes issued by PMI to fund such loans (the “PMI Notes”) and certain related rights, assets and other property;
WHEREAS, from and after any Transfer Date, PFL will (i) operate the Platform to originate additional loans (the “New Loans” and, together with the PMI Borrower Loans, the “Loans”) and issue notes to fund such loans (the “New Notes” and, together with the PMI Notes, the “Notes”), (ii) will assume all obligations of PMI in relation to the PMI Borrower Loans and PMI Notes and (iii) engage PMI pursuant to an Administration Agreement to perform certain services relating to the acquisition, maintenance, collection, liquidation and other servicing of Loans and the issuance and sale of New Notes and performance of its obligations in relation to all Notes;
WHEREAS, PFL desires to engage CSC Logic to perform, from and after any Transfer Date, substantially the same back-up loan servicing duties for PFL in relation to the Loans and Notes that, prior to such Transfer Date, CSC Logic performs for PMI under the Existing Processing Agreement, on substantially the same terms and conditions as are set forth in the Existing Processing Agreement;
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Services to be Performed by CSC Logic. Subject to the terms and conditions hereof, commencing on the Transfer Date (which date will be specified in a notice of termination delivered to CSC Logic by PMI pursuant to the Existing Processing Agreement), CSC Logic shall provide certain back-up servicing services to PFL and shall deliver reports and information to PFL relating to the foregoing services (collectively, all of the foregoing are referred to as the “CSC Logic Services” or the “Services”), as described in Exhibit A (which shall be titled “Statement of Work” or “Description of Services”).
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1.2
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Changes to Exhibit A. At any time or times, CSC Logic may revise Exhibit A, and thereby offer additional services, or modify existing services or terminate certain services; provided, however, that PFL agrees to such modifications, and provided that CSC Logic will give to PFL not less than one hundred and eighty (180) days’ notice prior to materially diminishing the services offered. In addition, CSC Logic may provide other services to PFL on terms and conditions as may be otherwise mutually negotiated and agreed upon between them.
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2.
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Fees, Charges and Billing.
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2.1
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Payment. As consideration for performing the CSC Logic Services, commencing on the Transfer Date, PFL, among other things, shall pay CSC Logic the fees and expenses as set forth in the Pricing Schedule that is attached hereto and incorporated herein as Exhibit B. CSC Logic shall issue an invoice to PFL on a monthly basis. The fees and expenses set forth in Exhibit B are stated in U.S. Dollars, and all invoicing and payments hereunder shall also be in U.S. Dollars. PFL shall pay outstanding invoices within thirty (30) days or incur interest charges of 1.5% per month on any outstanding balance.
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2.2
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Taxes. Except for income taxes levied on CSC Logic’s net income, PFL shall pay or reimburse CSC Logic for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, including sales or use taxes, data processing taxes, royalty taxes, property taxes, international withholding taxes (including those in lieu of income taxes), customs or other import or export taxes, value added taxes and amounts levied in lieu thereof based on charges set, services performed or to be performed, or payments made or to be made hereunder. PFL shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to CSC Logic under this Agreement. This provision shall survive the termination of this Agreement and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g. a deficiency assessment by a taxing authority as a result of an audit after the termination of this Agreement). Provided, however, CSC Logic will cooperate with PFL to attempt to minimize the amount of taxes and assessments payable by PFL in accordance with applicable statutes, rules and regulations.
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In the event that a taxing authority or other entity asserts that CSC Logic is responsible for the payment of any taxes, interest or penalties for which PFL is responsible pursuant to this Section, PFL shall defend, indemnify and hold harmless CSC Logic from any and all liability for the payment of such taxes, interest or penalties and any expenses and fees (including reasonable attorneys’ fees) incurred by CSC Logic as a result of such assertion. PFL shall take all reasonable steps, including the posting of a bond, to remove any lien from CSC Logic property, which arises from such assertion.
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If PFL is a tax exempt entity or if any transaction covered by this Agreement is a tax exempt transaction, PFL will provide a copy of such tax exemption certificate to CSC Logic immediately after the execution of this Agreement. If PFL has a direct pay certificate that allows the direct payment to the proper taxing authority of PFL’s obligations under this Section, PFL shall provide a copy of such direct pay certificate to CSC Logic immediately upon the execution of this Agreement.
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In the event that an Exhibit or other attachment to this Agreement specifically provides for the delivery of equipment or other property to PFL for the resale to a third party, and as a result PFL is not responsible for the payment of the taxes and assessments under this Section, PFL shall provide a copy of such resale certificate to CSC Logic immediately upon the execution of this Agreement.
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PFL warrants and represents that, if applicable, it will provide the following to CSC Logic: a) Tax exempt certificate; b) Direct Pay permit; c) Resale Certificate.
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2.3
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CSC Logic may increase any of the fees and charges as set forth in Exhibit B annually, with such changes to be effective on the anniversary of the Effective Date; provided, however, that the percentage increase for all fees and charges at the time of the increase shall not exceed the percentage increase in the Consumer Price Index For All Urban Consumers: All Items, for the most recent twelve (12) month period as most recently published at the time of the increase.
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3.
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Term of Agreement.
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3.1
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The initial term of this Agreement shall begin on the Effective Date as set forth above and shall continue for a period one (1) year (“Initial Term”), unless earlier terminated by PFL or CSC Logic in accordance with this Agreement. On the first anniversary of the Effective Date and each anniversary date thereafter, this Agreement shall automatically successively renew for a period of one (1) year each (each a “Renewal Term”) unless (a) earlier terminated by PFL or CSC Logic in accordance with this Agreement, or (b) PFL or CSC Logic gives notice of non-renewal (a “Non-Renewal Notice”) to the non-terminating Parties at least ninety (90) days prior to the expiration of the Initial Term or any Renewal Term.
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3.2
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Early Termination. At any time during the Initial Term or any Renewal Term, PFL shall have the right to give CSC Logic notice of early termination of this Agreement, which notice shall call for a termination date not earlier than one (1) month after the date of the notice. If such notice is delivered on or after a Transfer Date and other than in relation to a termination for diminution as described in Section 3.3 or termination in relation to a default pursuant to Section 13, then such notice shall be accompanied by payment to CSC Logic of an “Early Termination Payment” in an amount equal to the product of (a) the average amount invoiced monthly by CSC Logic to PFL pursuant to the Agreement, calculated over the four months preceding such notice of early termination (or if such notice is delivered during the first three months after such Transfer Date, then calculated as the average amount invoiced monthly by CSC Logic to PFL or PMI over the four months preceding such notice of early termination), multiplied by (b) the number of months (not to exceed twelve (12)) otherwise remaining between the date of termination and the end of the Initial Term or the Renewal Term during which such early termination occurs. If such notice is delivered after a Transfer Date and other than in connection with a termination for diminution as described in Section 3.3 or termination for default pursuant to Section 13 and is not accompanied by the early termination payment, then such early termination notice shall be null and void and of no effect.
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3.3
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Termination for Diminution. During the sixty (60) day period (the “Review Period”) commencing on PFL's receipt of notice from CSC Logic pursuant to Section 1.2 of a material diminution of services, PFL shall have the option to elect to terminate this Agreement based on such diminution. If PFL elects to so terminate, it shall provide notice thereof to CSC Logic during the Review Period, which termination shall be effective on the day that CSC Logic's Section 1.2 notice specified as the day upon which the diminution would otherwise take effect. No Early Termination Payment shall be payable to CSC Logic if PFL elects to terminate this Agreement pursuant to this Section 3.3.
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4.
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Duties of PFL. So long as this Agreement is in force, PFL warrants and covenants that PFL shall:
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4.1
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furnish or cause to be furnished to CSC Logic in form satisfactory to CSC Logic, all information (the “Data”) as specified by CSC Logic in form and content sufficient for CSC Logic to perform the CSC Logic Duties. It is understood that PFL shall be solely responsible for completeness and accuracy of the Data and CSC Logic shall not be responsible for errors of any nature attributable to the Data being incomplete or inaccurate;
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4.2
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furnish promptly to CSC Logic copies of all reports, documents, information and input Data required by CSC Logic to implement and furnish the services and products hereunder and such other information as is reasonably requested by CSC Logic from time to time;
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4.3
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pay to CSC Logic when due all charges for its services and products as set forth in this Agreement;
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4.4
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be appropriately licensed to conduct its business in compliance with all legal requirements, and shall cause all policy forms, certificates, endorsements and other appropriate documents to be prepared, approved and issued in compliance with all applicable federal and state laws and regulations.
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5.
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Limited Liability and Limited Warranty. THERE ARE NO WARRANTIES MADE BY CSC LOGIC, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CSC LOGIC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF CURRENCY, FUNDS, DATA, PROFITS OR GOODWILL. CSC LOGIC'S MAXIMUM LIABILITY FOR ANY BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID BY EITHER PROSPER PARTY TO CSC LOGIC FOR THE SERVICES TO WHICH SUCH BREACH PERTAINS FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING SUCH BREACH. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL BE ENFORCED, EVEN IF ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
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6.
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Correction of Reports. PFL will give or cause to be given detailed notice to CSC Logic of any error in any report prepared by CSC Logic within three (3) business days after receipt of daily reports, within two (2) weeks after receipt of weekly reports and within thirty (30) days after receipt of all other reports; thereafter, CSC Logic may not have the data to recreate the report. Failure by PFL to give CSC Logic such notice within the appropriate time period detailing the specific error which is claimed by PFL shall relieve CSC Logic of any responsibility to correct such error and rerun such report.
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7.
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PFL Materials.
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7.1
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Condition of Materials. All source material, data and equipment furnished by PFL in order that CSC Logic may perform hereunder must be compatible with CSC Logic's equipment and such material and data must be in good condition for machine processing. If PFL fails to furnish its Data to CSC Logic in the form and as timely as needed by CSC Logic, CSC Logic will undertake to process such Data within a reasonable time after it is furnished in proper form. Data submitted by PFL to CSC Logic for processing, and all other data, material and property, shall be transmitted or transported to and from CSC Logic at PFL's expense. CSC Logic shall not be liable to PFL under any circumstances for the loss or destruction of or damage to any of PFL's Data, material or property in the custody, control or possession of CSC Logic except for the reasonable cost of replacement or restoration.
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7.2
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Customer Privacy and Confidentiality of PFL Data.
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7.2.1
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Confidential Information. Each Party and their respective affiliates, directors, officers, employees, authorized representatives, agents and advisors (including without limitation, attorneys, accountants, consultants, bankers and financial advisors) shall keep confidential all information concerning the other Party’s proprietary business procedures, products, services, operations, marketing materials, fees, policies or plans and all Nonpublic Personal Information of the other Party or its affiliates that is received or obtained during the negotiation or performance of the Agreement, whether such information is oral or written, and whether or not labeled as confidential by such Party (collectively "Confidential Information"). CSC Logic acknowledges and agrees that from and after a Transfer Date, all Confidential Information supplied by PMI under or in relation to the Existing Processing Agreement that relates to PMI Borrower Loans, PMI Notes, the related borrower or lenders, and payments by or to them, including all related Nonpublic Personal Information will be considered Confidential Information of PFL under this Agreement. "Nonpublic Personal Information" shall include all personally identifiable financial information and any list, description or other grouping of consumers, and publicly available information pertaining to them, that is derived using any personally identifiable financial information that is not publicly available, and shall further include all "nonpublic personal information" as defined by federal regulations implementing the Xxxxx-Xxxxx-Xxxxxx Act, as amended from time to time. "Personally identifiable financial information" means any information a consumer provides to a Party or its affiliates in order to obtain a financial product or service, any information a Party or its affiliates otherwise obtains about a consumer in connection with providing a financial product or service to that consumer, and any information about a consumer resulting from any transaction involving a financial product or service between a Party or its affiliate and a consumer. Personally identifiable information may include, without limitation, a consumer's first and last name, physical address, zip code, email address, phone number, social security number, birth date, and any other information that itself identifies or when tied to the above information, may identify a consumer.
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7.2.2
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Use of Confidential Information. For as long as Confidential Information is in possession of a Party, such Party shall take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the use, duplications or disclosure of Confidential Information, other than, by or to its employees or agents who are directly involved in negotiating or performing this Agreement and who are apprised of their obligations under this Section and directed by the receiving Party to treat such information confidentially, or except as required by law or by a supervising regulatory agency of a receiving Party. No Party shall disclose, share, rent, sell or transfer to any third party any Confidential Information. The Parties shall use Confidential Information only as necessary to perform this Agreement.
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7.2.3
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Return of Information; Indemnity. Upon the termination or expiration of this Agreement, or upon the request of the disclosing Party, the receiving Party shall promptly return all Confidential Information received in connection with the transaction, and shall promptly destroy such materials containing such information (and any copies, extracts, and summaries thereof) and shall further provide the disclosing Party with written confirmation of such return or destruction upon request. In the event a Party discovers that Confidential Information has been used in an unauthorized manner or disclosed in violation of this Section, the Party discovering the unauthorized use or disclosure shall immediately notify the other Party of such event, and the receiving Party shall indemnify and hold the disclosing Party harmless from all claims, damage, liability, costs and expenses (including court costs and reasonable attorneys' fees) arising or resulting from the unauthorized use or disclosure. In addition, the disclosing Party shall be entitled to all other remedies available at law or equity, including injunctive relief. The provisions of this Section 7.2.3 shall survive termination of this Agreement.
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7.3
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Escrow Agent. PFL agrees to maintain or cause to be maintained in escrow all software, manuals, and operating procedures that would be required by CSC Logic to duplicate the operating environment of PFL within a seventy- two (72) hour period. In addition to the escrow, any related vendor services, naming rights, proprietary hardware, or any other contract or knowledge that would reasonably be required for CSC Logic to continue to operate PFL’s website and all related services, must be documented and made available to CSC Logic. PFL further guarantees that it will keep all of these above-referenced material and documentation current. CSC Logic shall be entitled to receive any or all of the above-referenced escrow and related operating elements in the event that PFL has completely ceased all business activities for a period of sixty (60) days or more, or by notification by the lenders or controlling parties of a default event by the PFL. CSC Logic’s use of PFL’s property is limited to the CSC Services related to the remaining terms of the receivables or as defined in any agreement between PFL and a lender or other controlling party. PFL agrees to provide CSC Logic, within ninety (90) days of the execution of this Agreement, an inventory of all elements that PFL intends to escrow or otherwise provide (exclusive of any items or elements inventoried by PMI pursuant to Section 7.3 of the Existing Processing Agreement) that will give CSC Logic the ability to continue operation in the event of a transfer. The escrow and other required accommodations must be in place ninety (90) days after Client and CSC Logic agree that the proposed inventory is complete.
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7.4
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Disposition of PFL Materials. CSC Logic agrees that upon the expiration or termination of this Agreement for any reason, CSC Logic will return, in accordance with PFL's instructions and in a mutually agreeable format, all of PFL's Data and materials that are not Confidential Information as such term is defined in Section 7.2.1 relating to the services provided by CSC Logic hereunder. If PFL fails to provide CSC Logic with instructions regarding the return or disposal of such Data within sixty (60) days following such expiration or termination, CSC Logic may dispose of any Data, material or property belonging to PFL. If, pursuant to such disposal, CSC Logic incurs any expense, PFL shall pay CSC Logic for such reasonable expense upon demand.
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8.
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Infringement and Capacity. The performance of PFL’s duties under this Agreement shall not cause CSC Logic to infringe upon any patent, license, copyright or other proprietary, intellectual or property right, or violate any other right (including but not limited to, the right to royalties or license fees) of any person, partnership, corporation or other entity. PFL also represents and warrants that (i) it is and at all times will be free of any contractual obligation that would prevent it from entering into this Agreement and (ii) CSC Logic's offer to provide services and information hereunder in no way caused, or will cause, or induce, it to breach any contractual obligation.
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9.
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Confidentiality of CSC Logic Proprietary Information. PFL acknowledges that the designs, specifications, manuals, documentation and other materials related to the services performed and the information produced hereunder by CSC Logic (collectively “Documentation”), and all other systems, programs, designs, specifications, manuals, documentation and other materials which are utilized, developed or made available by CSC Logic in connection with this Agreement or the Existing Processing Agreement (collectively “Other Materials”) are the confidential, proprietary and/or trade secret property and information of CSC Logic or its licensors and shall remain such property and information of CSC Logic or its licensors, both before and after the term of this Agreement. PFL shall not copy, sell, assign, transfer, distribute or disclose all or any part of the Documentation or Other Materials to any other person, partnership, corporation or other entity. PFL shall confine the knowledge and use of the Documentation and Other Materials only to its employees who require such knowledge for use in the ordinary course and scope of their employment and PMI in relation to it performance of services to PFL under the Administration Agreement. PFL and such employees shall (and shall cause PMI to) use such Documentation and Other Materials solely in connection with its business purposes which are being addressed by CSC Logic pursuant to this Agreement. Upon any expiration or termination of this Agreement, PFL shall promptly return to CSC Logic all property or information which is covered by this Section 9. Notwithstanding anything herein to the contrary, the Parties can copy, distribute or disclose Documentation and Other Materials with each other and with the Parties’ employees (and in the case of PFL, with PMI), provided that such copying, distribution or disclosure is solely for the purpose of fulfilling the sharing Party’s obligations under this Agreement.
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10.
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No Solicitation. During the term of this Agreement and for one year after its termination, PFL shall not (a) attempt to induce an employee or independent contractor of CSC Logic to terminate his or her employment or contract; nor (b) hire or enter into a contract for the services of an employee, independent contractor, or former employee or independent contractor of CSC Logic without first obtaining CSC Logic's written consent, except for former employees or independent contractors whose employment or engagement has been terminated for over six (6) months.
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11.
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Relationship of the Parties. The relationship of the Parties to this Agreement is that of independent contractors. Neither this Agreement nor any of the activities contemplated hereby shall be deemed to create any partnership, joint venture, agency or employer-employee relationship between CSC Logic and PFL.
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12.
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Force Majeure. Notwithstanding anything herein to the contrary, no Party shall be considered in default hereunder or have any liability to any other Party for any failure to perform if such failure arises out of causes beyond the control of such Party. Such causes include, but are not limited to, acts of God or public enemy, acts of the government acting in any capacity, fires, floods, epidemics, quarantine restrictions, strikes, war, terroristic or criminal acts, civil disturbance, riots, rebellion, freight embargoes, degradation of telephone or other communication service or weather conditions.
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13.
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Default.
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13.1
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Notice and Cure Period, Rights, After Default. If PFL is not in compliance with Section 4.4, or if PFL shall fail to pay to CSC Logic any amount due hereunder within five (5) days after receipt of the notice that the same is past due, or if either CSC Logic or PFL breaches or fails to comply with any other provision of this Agreement and such failure continues for a period of thirty (30) days after receipt of written notice thereof, then CSC Logic or PFL, as the case may be, shall be deemed to be in default and the non-breaching Party shall have the right (i) to terminate this Agreement immediately, and (ii) in addition, but subject to any limitations contained in this Agreement, to pursue any and all rights which may be available to it. Termination of this Agreement shall not relieve either party from payment of all amounts of money owed by it to the other Party (for the avoidance of doubt, no Early Termination Payment being applicable in relation to termination pursuant to this Section 13.1). Notwithstanding anything in this Agreement to the contrary, so long as PFL is in default under this Agreement or any other agreement in effect between CSC Logic and PFL, CSC Logic shall have no obligation to perform the CSC Logic Duties while the default continues.
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13.2
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Injunctive Relief. The Parties acknowledge that if either CSC Logic or PFL fails to comply with the provisions of Sections 7.2, 9 or 10 hereof, the non-breaching Party may suffer irreparable harm for which there may be no adequate remedy at law. Accordingly, if either CSC Logic or PFL fails to comply with any provision of said sections, then the non-breaching Party will be entitled immediately to injunctive relief or any other appropriate equitable remedy. Further, if such failure continues for thirty (30) days after receipt of notice thereof from the non-breaching Party, then such non-breaching Party shall also have all of the rights available to it as if there was a default under Section 13.1 hereof.
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13.3
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Time for Bringing Suit. No action may be brought by either Party against the other in connection with this Agreement more than two (2) years after the cause of action arose, except that any action by either Party for nonpayment of any amount of money due to it hereunder may be brought at any time subject to the applicable statute of limitations.
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13.4
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Attorney or Collection Fees. If either Party incurs any cost or fee from an attorney, collection agency or otherwise in attempting to collect any amount due it hereunder, then the non-paying Party shall pay to the collecting Party upon demand the amount of such cost or fee. Further, in the event of any litigation between the Parties in connection with this Agreement, the prevailing Party shall be entitled to recover its reasonable costs and attorney fees incurred in enforcing this Agreement and any related judgments entered.
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13.5
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No Waiver of Remedies. The failure by either Party to exercise any option or right upon a default or breach of any of the terms of this Agreement shall not be construed as waiving such right or option at a later date. Further, all of such rights or options shall be cumulative, and the exercise of any one such right or option shall not preclude the exercise of any other right or option. No exercise of, or delay or omission to exercise, the rights and powers herein granted shall be held to exhaust the same or be construed as a waiver thereof, and every such right and power may be exercised at any time and from time to time.
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14.
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Performance By PMI as Administrator; Separate Entities.
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14.1
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CSC Logic acknowledges and agrees that from and after a Transfer Date PMI may, in its capacity as agent of PFL pursuant to the Administration Agreement, perform obligations of PFL under this Agreement and, to the extent it does so, will be doing so solely in its various capacities as corporate administrator, loan servicer, platform administrator or similar capacity under the Administration Agreement and not for its own account and that PFL, for purposes of this Agreement, will remain responsible to CSC Logic for any responsibilities PMI is performing on behalf of PFL in accordance with the Administration Agreement.
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14.2
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CSC Logic acknowledges and agrees that PFL and PMI are separate legal entities and that neither of them has guaranteed the performance by the other of its obligations hereunder or under the Existing Processing Agreement. Accordingly, CSC Logic agrees that (i) PFL shall have no liability for the performance by PMI of its obligations under the Existing Processing Agreement, and (ii) PMI shall have no liability for the performance by PFL of its obligations under this Agreement, except that to the extent that PMI in fact performs (or undertakes to perform) any PFL obligation under this Agreement; PMI will have liability to CSC Logic in relation to its performance thereof.
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15.
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Limited Recourse. The obligations of PFL under this Agreement are solely the obligations of PFL. No recourse shall be had for the payment of any amount owing by PFL under this Agreement, or any other obligation of or claim against PFL arising out of or based upon this Agreement, against PMI or any other organizer, member, director, officer, manager or employee of PMI or any of its other Affiliates; provided, however, that the foregoing shall not relieve any such person of any liability it might otherwise have as a result of fraudulent actions or omissions taken by it. CSC Logic acknowledges that the obligations of PFL on the Notes are secured by a pledge of the Loans and related proceeds, such that the proceeds of Loans will not be available to pay claims of CSC Logic against PFL. “Affiliate” shall mean, with respect to a Party, a Person who directly or indirectly controls, is controlled by or is under common control with the Party. For purpose of this definition, the term “control” (including with correlative meanings, the terms controlling, controlled by and under common control with) means the power to direct the management or policies of such Person, directly or indirectly, through the ownership of twenty-five percent (25%) or more of a class of voting securities of such Person. “Person” means any legal person, including any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, governmental entity, or other entity of similar nature.
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16.
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No Petition. CSC Logic hereby covenants and agrees that it will not institute against, or join or assist any other Person in instituting against, PFL any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other similar proceeding under the laws of any jurisdiction for one year and a day after all of the borrower payment dependent notes of PFL have been paid in full.
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17.
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Miscellaneous.
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17.1
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Notices. Any notice which is required or permitted to be given hereunder shall be in writing and shall be effective upon receipt, and shall be delivered as follows: (a) by United States mail, with return receipt requested, postage prepaid; (b) by Federal Express or other nationally recognized overnight delivery service; or (c) delivered by telecopy as follows:
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If to CSC Logic:
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CSC Logic, Inc.
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0000 Xxxxxxxx Xxxxxxx, Xxxxx 0X
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Xxxxxx, Xxxxx 00000
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Attn: Legal
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Facsimile: 469.499.5974
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If to PFL:
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000 Xxxxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxxxxxxx, XX 00000
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Attn: Secretary
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Facsimile: 000-000-0000
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Either Party at any time or times may change the foregoing address or telecopy information, pursuant to notice to the other Party duly given in accordance with requirements of this Section 17.1.
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17.2
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Audit. PFL and its authorized agents (including PMI) shall have the right, at its expense and at reasonable times and upon reasonable notice, to audit the applicable books and records of PFL's program in CSC Logic's office.
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17.3
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Assignment. No Party may transfer, whether by assignment, sublicense, merger, consolidation, operation of law, or otherwise, any rights or obligations under this Agreement without the other Party’s prior written consent. The consent to any particular assignment shall not constitute consent to further assignment. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns. Any transaction in contravention of this Section shall be null and void.
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page 10 of 28
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CSC Confidential
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17.4
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Captions. All captions and headings to the sections and subsections of this Agreement have been inserted for convenience of reference only and shall not be construed as a part hereof.
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17.5
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Advertising No Party shall publish or use the name of any other Party in any manner or publication without the prior consent of such other Party, except as required by law or legal process, in which event notice thereof shall be promptly given. Without limiting the generality of the foregoing, no letter of general mailing or advertisement or other communication to be sent to a policyholder or customer of PFL may contain the name CSC Logic without CSC Logic's prior written approval.
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17.6
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Indemnity PFL hereby agrees to indemnify, defend and hold harmless CSC Logic and its shareholders, directors, officers, agents and employees from all claims, costs, penalties, damages, liability, obligation, cause of action, and all fees, expenses and costs associated therewith, including attorneys' fees, arising from PFL's breach or nonperformance hereunder or from CSC Logic’s faithful performance of the CSC Logic duties hereunder or claimed by any borrower of PFL, any customer of PFL, any financial investor of PFL, or any person claiming under or through any of them.
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CSC Logic shall indemnify, defend and hold harmless PFL and its shareholders, directors, officers, agents and employees from and against all claims, costs, penalties, damages, liability, obligations, cause or action, and all fees, expenses and costs associated therewith, including attorneys' fees, arising from CSC Logic’s material breach of nonperformance hereunder, or and from and against any Damages, to the extent such Damages arise under this Agreement and to the extent that such Damages arise out of or relate to any third party claim of willful misconduct or gross negligence, or personal injury or property damage caused by CSC Logic in the performance of its obligations hereunder. CSC Logic further agrees to indemnify, hold harmless, and defend PFL and its shareholders, directors, officers, agents and employees from and against all claims of intellectual property infringement arising from the products or services provided hereunder.
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17.7
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Governing Law, Jurisdiction, Venue. THIS AGREEMENT IS BEING MADE AND ENTERED INTO IN THE COUNTY OF DALLAS, STATE OF TEXAS AND, IT SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO TEXAS’ CONFLICTS OF LAWS PRINCIPLES. THE PARTIES AGREE TO THE EXCLUSIVE JURISDICTION OF AND VENUE IN THE STATE AND FEDERAL COURTS IN DALLAS COUNTY, TEXAS AND WAIVE ALL RIGHTS TO VENUE AND JURISDICTION IN ANY OTHER FORUM. BECAUSE THE PARTIES AGREE THAT THIS CONTRACT IS NOT A CONTRACT FOR THE SALE OF GOODS, THIS AGREEMENT SHALL NOT BE GOVERNED BY ANY CODIFICATION OF ARTICLE 2 OR 2A OF THE UNIFORM COMMERCIAL CODE, OR ANY CODIFICATION OF THE UNIFORM COMPUTER INFORMATION TECHNOLOGY ACT OR ANY REFERENCE TO THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
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17.8
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Severability. If any clause or provision of this Agreement becomes or is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under any present or future law effective during the term hereof, the remainder of this Agreement shall not be affected thereby.
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17.9
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Survival of Certain Provisions. Notwithstanding anything herein to the contrary, the obligations of the Parties under Sections 2.2, 5, 7.2, 9, 10, 13.2, 13.3, 13.4, 13.5, 15, 16, 17.5, 17.6, 17.7 and 17.8 hereof shall survive any expiration or termination of this Agreement.
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page 11 of 28
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CSC Confidential
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17.10
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Entire Agreement. This Agreement together with its attached Exhibits, which are hereby incorporated herein as if set forth in full herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and it supersedes all prior or contemporaneous agreements, contracts, understandings, proposals and negotiations with respect to such subject matter. This Agreement may be amended, waived or supplemented only by a written instrument duly executed by CSC Logic and PFL. The terms and conditions of this Agreement shall prevail notwithstanding any additional or different terms or conditions of any purchase order that may be issued by PFL.
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17.11
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Multiple Counterparts. This Agreement may be signed in multiple counterparts and all such counterparts shall be treated as one document. The signatures of the Parties need not appear on the same copy of this Agreement, so long as each Party signs at least one copy of this Agreement and the copies contain the same terms.
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17.12
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Construction. The headings used herein are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of this Agreement. Where context so indicates, a word in the singular form shall include the plural, a word in the masculine form shall include the feminine and vice-versa. The word “including” and similar constructions (such as “for example”, “such as”, and “e.g.”) shall mean “including, without limitation”, throughout this Agreement. The Parties agree that the terms and conditions of this Agreement are the result of negotiations between the Parties and that this Agreement shall not be construed in favor of or against any Party by reason of the extent to which the Party or its professional advisors participated in the preparation of this Agreement.
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17.13
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Third Party Beneficiaries. Each Party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than PFL and CSC Logic.
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17.14
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Covenant of Further Assurances. PFL and CSC Logic covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each of PFL and CSC Logic shall execute and deliver any further legal instruments and perform any acts which are or may become necessary to effectuate the purposes of this Agreement.
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[Remainder of page intentionally left blank. Signature page follows.]
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page 12 of 28
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CSC Confidential
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IN WITNESS WHEREOF, the Parties, by their duly authorized officers whose signatures are set forth below, have executed this Agreement as of the Effective Date set forth above.
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CSC Logic, Inc.
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0000 Xxxxxxxx Xxxxxxx, Xxxxx 0X
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Xxxxxx, Xxxxx 00000
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| By: | - /s/ - | |
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Name: Xxxxxxx X. Xxxxxx
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Title: Industry General Manager
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| Execution Date: | November 13, 2012 |
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000 Xxxxxx Xxxxxx, 00xx Xxxxx
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Xxx Xxxxxxxxx, XX 00000
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| By: | - /s/ - | |
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Name: Xxxxxx Xxxxxxx
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Title: Secretary
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Execution Date: November 21, 2012
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CSC Logic, Inc.
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page 13 of 28
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CSC Confidential
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EXHIBIT A
DESCRIPTION OF SERVICES / STATEMENT OF WORK
Cold Back- Up Servicing Duties:
CSC Logic receives and reviews the consolidated monthly servicer's report (certificate) and determines that it is complete on its face.
Additional duties as requested by PFL (or PMI as its agent) or a successor or permitted assign thereof:
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1.
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Conduct quarterly conference call with PFL (or PMI as its agent) or a successor or permitted assign thereof to discuss general status including financial, portfolio, and systems issues.
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2.
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Conduct periodic due diligence reviews as directed by PFL (or PMI as its agent) or a successor or permitted assign thereof to meet staff, review servicing practices and controls, review software controls and functionality and report on any issues or concerns.
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Transfer of Servicing
1. CSC Logic shall assist controlling parties in developing a reasonable transition plan and shall assist PFL (or PMI as its agent) or a successor or permitted assign thereof in the transfer of the servicing activities defined herein to CSC Logic, if applicable.
2. In the event of a transfer of servicing, whereby CSC Logic is requested to assume the servicing functions then performed by PMF (or PMI, as the case may be, pursuant to the Administration Agreement), CSC Logic may assume the role as a successor servicer and may perform functions such as the maintenance of invoice activity, collections, asset recovery, cash management, lockbox management, payment processing and other applicable accounting functions. Such services shall be addressed and set forth in an agreement, the terms of which will be in material accordance with CSC Logic’s standard Portfolio Servicing Agreement, which is attached as Exhibit C hereto.
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PFL
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Statement of Work
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page 14 of 28
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EXHIBIT B
PFL
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Services
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Fee
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PFL Setup Fee
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Includes back-up servicing set-up and attorney fees
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[*]
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Monthly Back-up Servicing Fee (COLD)
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[*]
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Monthly Minimum Back-up Servicing Fee (COLD)
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[*]
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Consulting Services/Due Diligence Reviews
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[*]
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| REIMBURSABLE EXPENSES |
As specified below:
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1)
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Reasonable out-of-pocket travel expenses incurred by CSC Logic staff and approved by PFL (or PMI as its agent).
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2)
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Any other expenses approved by PFL (or PMI as its agent).
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PFL
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page 15 of 28
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CSC Confidential
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EXHIBIT C
Form of Portfolio Servicing Agreement
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PFL
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page 16 of 28
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CSC Confidential
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PROCESSING AGREEMENT
between
CSC Logic, Inc.
and
CSC Logic, Inc.
A Subsidiary of Computer Sciences Corporation
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0X
Xxxxxx, Xxxxx 00000
(000) 000-0000
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Page 17 of 28
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CONFIDENTIAL AND PROPRIETARY
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PROCESSING AGREEMENT
This Agreement (“Agreement”) is entered into as of the ____ day of _________, 20____ (the “Effective Date”) by and between CSC Logic, Inc., a Texas corporation (“CSC Logic”) and [______], a [________] corporation (“Client”).
WHEREAS, Client desires that CSC Logic perform certain services, and Client further desires that Logic deliver reports and information to Client in connection with CSC Logic's performance of the services to be performed by CSC Logic.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
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1.
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Services to be Performed by CSC Logic.
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1.1
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CSC Logic Services. Subject to the terms and conditions hereof, CSC Logic shall provide certain data processing services to Client, and/or to others on behalf of Client, and shall deliver reports and information to Client relating to the foregoing services (collectively, all of the foregoing are referred to as the “CSC Logic Services” or the “Services”), as described in Exhibit A (which shall be titled “Statement of Work” or “Description of Services”).
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1.2
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Changes to Exhibit A. At any time or times, CSC Logic may revise Exhibit A, and thereby offer additional services, or modify existing services or terminate certain services; provided, however, that CSC Logic will give to Client not less than one hundred and eighty (180) days’ notice prior to materially diminishing the services offered. In addition, CSC Logic may provide other services to Client on terms and conditions as may be otherwise mutually negotiated and agreed upon between them.
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2.
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Fees, Charges and Billing.
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2.1
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Payment. As consideration for performing the CSC Logic Duties, Client, among other things, shall pay CSC Logic the fees and expenses as set forth in the Pricing Schedule that is attached hereto and incorporated herein as Exhibit B. CSC Logic shall issue an invoice to Client on a monthly basis. The fees and expenses set forth in Exhibit B are stated in U.S. Dollars, and all invoicing and payments hereunder shall also be in U.S. Dollars. Servicing fees and expenses due hereunder shall be netted from the monthly payments received by CSC Logic, if applicable. If payments collected on the Receivables are not sufficient to pay the servicing fees and expenses as stated in Exhibit B, or if net remittance is not applicable hereunder, the Client shall pay outstanding invoices or any shortfall from net remittance within thirty (30) days or incur interest charges of 1.5% per month on any outstanding balance.
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2.2
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Taxes. Except for income taxes levied on CSC Logic’s net income, Client shall pay or reimburse CSC Logic for all national, federal, provincial, state, local or other taxes and assessments of any jurisdiction, including sales or use taxes, data processing taxes, royalty taxes, property taxes, international withholding taxes (including those in lieu of income taxes), customs or other import or export taxes, value added taxes and amounts levied in lieu thereof based on charges set, services performed or to be performed, or payments made or to be made hereunder. Client shall not be entitled to deduct the amount of any such taxes, duties or assessments from payments made to CSC Logic under this Agreement. This provision shall survive the termination of this Agreement and shall be applicable regardless of the time frame in which the requirement of the payment of such taxes or assessments is asserted (e.g. a deficiency assessment by a taxing authority as a result of an audit after the termination of this Agreement). Provided, however, CSC Logic will, cooperate with Client to attempt to minimize the amount of taxes and assessments payable by the Client in accordance with applicable statutes, rules and regulations.
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CSC Logic, Inc.
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Page 18 of 28
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CONFIDENTIAL AND PROPRIETARY
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In the event that a taxing authority or other entity asserts that CSC Logic is responsible for the payment of any taxes, interest or penalties for which Client is responsible pursuant to this Section, Client shall defend, indemnify and hold harmless CSC Logic from any and all liability for the payment of such taxes, interest or penalties and any expenses and fees (including reasonable attorneys’ fees) incurred by CSC Logic as a result of such assertion. Client shall take all reasonable steps, including the posting of a bond, to remove any lien from CSC Logic property, which arises from such assertion.
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If Client is a tax exempt entity or if any transaction covered by this Agreement is a tax exempt transaction, Client will provide a copy of such tax exemption certificate to CSC Logic immediately after the execution of this Agreement. If Client has a direct pay certificate that allows the direct payment to the proper taxing authority of Client’s obligations under this Section, Client shall provide a copy of such direct pay certificate to CSC Logic immediately upon the execution of this Agreement.
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In the event that an Exhibit or other attachment to this Agreement specifically provides for the delivery of equipment or other property to Client for the resale to a third party, and as a result Client is not responsible for the payment of the taxes and assessments under this Section, Client shall provide a copy of such resale certificate to CSC Logic immediately upon the execution of this Agreement.
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Client warrants and represents that it has or will provide the following to CSC Logic: a) Tax exempt certificate; b) Direct Pay permit; c) Resale Certificate.
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2.3
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CSC Logic may increase any of the fees and charges as set forth in Exhibit B annually, with such changes to be effective on the anniversary of the Effective Date; provided, however, that the percentage increase for all fees and charges at the time of the increase shall not exceed the percentage increase in the Consumer Price Index For All Urban Consumers: All Items, for the most recent twelve (12) month period as most recently published at the time of the increase.
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3.
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Term of Agreement.
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3.1
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The initial term of this Agreement shall begin on the Effective Date as set forth above and shall continue for a period of five (5) years (“Initial Term”), unless earlier terminated by either party in accordance with this Agreement. On the fifth anniversary of the Effective Date and each anniversary date thereafter, this Agreement shall automatically successively renew for a period of one (1) year each (each a “Renewal Term”) unless (a) earlier terminated by either party in accordance with this Agreement, or (b) either party gives notice of non-renewal (a “Non-Renewal Notice”) to the other party at least one hundred and eighty (180) days prior to the expiration of the Initial Term or any Renewal Term.
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3.2
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Early Termination. At any time during the Initial Term or any Renewal Term, upon payment to the early termination payment described below, Client shall have the right to give CSC Logic notice of early termination of this Agreement, which notice shall call for a termination date not earlier than six (6) months after the date of the notice. The “Early Termination Payment” shall accompany the notice to CSC Logic, and shall be in an amount equal to the product of (a) the greatest monthly invoice issued by CSC Logic to Client pursuant to this Agreement, multiplied by (b) the number of months otherwise remaining between the date of termination and the end of the Initial Term or the Renewal Term during which such early termination occurs. Failure to accompany the early termination notice with the early termination payment shall render the early termination notice null and void and of no effect.
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3.3
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Termination for Diminution. During the sixty (60) day period (the “Review Period”) commencing on Client's receipt of notice from CSC Logic pursuant to Section 1.2 of a material diminution of services, Client shall have the option to elect to terminate this Agreement based on such diminution. If Client elects to so terminate, it shall provide notice thereof to CSC Logic during the Review Period, which termination shall be effective on the day that CSC Logic's Section 1.2 notice specified as the day upon which the diminution would otherwise take effect.
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4.
|
Deliveries After Non-Renewal Notice. Client expressly agrees that after any Non-Renewal Notice or after any other termination or expiration of this Agreement, CSC Logic shall not be obligated to release the information or Data (as defined in Section 5) resulting from CSC Logic's performance of the CSC Logic Duties during the final month of this Agreement or any data, material or property furnished by Client to CSC Logic until Client has paid all amounts due CSC Logic hereunder and Client has returned to CSC Logic all Documentation and Other Materials (as defined in Section 10) and equipment of CSC Logic.
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5.
|
Duties of Client. So long as this Agreement is in force, the Client warrants and covenants that Client shall:
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5.1
|
furnish or cause to be furnished to CSC Logic in form satisfactory to CSC Logic, all information (the “Data”) as specified by CSC Logic in form and content sufficient for CSC Logic to perform the CSC Logic Duties. It is understood that Client shall be solely responsible for completeness and accuracy of the Data and CSC Logic shall not be responsible for errors of any nature attributable to the Data being incomplete or inaccurate;
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5.2
|
furnish promptly to CSC Logic copies of all reports, documents, information and input Data required by CSC Logic to implement and furnish the services and products hereunder and such other information as is reasonably requested by CSC Logic from time to time;
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5.3
|
pay to CSC Logic when due all charges for its services and products as set forth in this Agreement;
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5.4
|
be appropriately licensed conduct its business in compliance with all legal requirements, and shall cause all policy forms, certificates, endorsements and other appropriate documents to be prepared, approved and issued in compliance with all applicable federal and state laws and regulations.
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6.
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Limited Liability and Limited Warranty. THERE ARE NO WARRANTIES MADE BY CSC LOGIC, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL CSC LOGIC BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF CURRENCY, FUNDS, DATA, PROFITS OR GOODWILL. CSC LOGIC'S MAXIMUM LIABILITY FOR ANY BREACH OF THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID BY CLIENT TO CSC LOGIC FOR THE SERVICES TO WHICH SUCH BREACH PERTAINS FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING SUCH BREACH. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL BE ENFORCED, EVEN IF ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
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7.
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Correction of Reports. Client will give detailed notice to CSC Logic of any error in any report prepared by CSC Logic within three (3) business days after receipt of daily reports, within two (2) weeks after receipt of weekly reports and within thirty (30) days after receipt of all other reports; thereafter, CSC Logic may not have the data to recreate the report. Failure by Client to give CSC Logic such notice within the appropriate time period detailing the specific error which is claimed by Client shall relieve CSC Logic of any responsibility to correct such error and rerun such report.
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Page 20 of 28
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CONFIDENTIAL AND PROPRIETARY
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8.
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Client Materials.
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8.1
|
Condition of Materials. All source material, data and equipment furnished by Client in order that CSC Logic may perform hereunder must be compatible with CSC Logic's equipment and such material and data must be in good condition for machine processing. If Client fails to furnish its Data to CSC Logic in the form and as timely as needed by CSC Logic, CSC Logic will undertake to process such Data within a reasonable time after it is furnished in proper form. Data submitted by Client to CSC Logic for processing, and all other data, material and property, shall be transmitted or transported to and from CSC Logic at Client's expense. CSC Logic shall not be liable to Client under any circumstances for the loss or destruction of or damage to any of Client's Data, material or property in the custody, control or possession of CSC Logic except for the reasonable cost of replacement or restoration.
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8.2
|
Confidentiality of Client Data. All Data or other material relating to Client's business which is required to be submitted by Client to CSC Logic pursuant to this Agreement will be safeguarded by CSC Logic to the same extent that CSC Logic safeguards similar data and material relating to its business. If, however, such Data or material is publicly available, already in CSC Logic's possession or known to it, or is rightfully obtained by CSC Logic from third parties, CSC Logic shall bear no responsibility for its disclosure, inadvertent or otherwise. In addition, CSC Logic will comply with the provisions of the Xxxxx-Xxxxx-Xxxxxx Act as it relates to the personally identifiable information of Client’s customers.
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8.3
|
Disposition of Client Materials. CSC Logic agrees that upon the expiration or termination of this Agreement for any reason and upon payment of all invoices by Client, CSC Logic will return, in accordance with Client's instructions and in a mutually agreeable format, all of Client's Data and materials relating to the services provided by CSC Logic hereunder. CSC Logic may dispose of any Data, material or property belonging to Client in CSC Logic’s possession and CSC Logic shall not be liable in any way if Client fails to provide CSC Logic with disposal instructions prior to the expiration or termination of this Agreement or prior to sixty (60) days after CSC Logic provides Client with notice of such disposal to Client's address identified in the Notice section herein, whichever is earlier. If pursuant to such disposal CSC Logic incurs any expense, Client shall pay CSC Logic for such expense upon demand.
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9.
|
Infringement and Capacity. The performance of Client’s duties under this Agreement shall not cause CSC Logic to infringe upon any patent, license, copyright or other proprietary, intellectual or property right, or violate any other right (including but not limited to, the right to royalties or license fees) of any person, partnership, corporation or other entity. Client also represents and warrants that (i) it is and at all times will be free of any contractual obligation that would prevent Client from entering into this Agreement and (ii) CSC Logic's offer to provide services and information hereunder in no way caused, or will cause, or induce, Client to breach any contractual obligation.
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10.
|
Confidentiality of CSC Logic Proprietary Information. Client acknowledges that the designs, specifications, manuals, documentation and other materials related to the services performed and the information produced hereunder by CSC Logic (collectively “Documentation”), and all other systems, programs, designs, specifications, manuals, documentation and other materials which are utilized, developed or made available by CSC Logic in connection with this Agreement (collectively “Other Materials”) are the confidential, proprietary and/or trade secret property and information of CSC Logic or its licensors and shall remain such property and information of CSC Logic or its licensors, both before and after the term of this Agreement. Client shall not copy, sell, assign, transfer, distribute or disclose all or any part of the Documentation or Other Materials to any other person, partnership, corporation or other entity. Client shall confine the knowledge and use of the Documentation and Other Materials only to its employees who require such knowledge for use in the ordinary course and scope of their employment. Client and such employees shall use such Documentation and Other Materials solely in connection with Client's business purposes which are being addressed by CSC Logic pursuant to this Agreement. Upon any expiration or termination of this Agreement, Client shall promptly return to CSC Logic all property or information which is covered by this Section 10.
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Page 21 of 28
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CONFIDENTIAL AND PROPRIETARY
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11.
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No Solicitation. During the term of this Agreement and for one year after its termination, Client shall not (a) attempt to induce an employee or independent contractor of CSC Logic to terminate his or her employment or contract; nor (b) hire or enter into a contract for the services of an employee, independent contractor, or former employee or independent contractor of CSC Logic without first obtaining CSC Logic's written consent, except for former employees or independent contractors whose employment or engagement has been terminated for over six (6) months.
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12.
|
Relationship of the Parties. The relationship of the parties to this Agreement is that of independent contractors. Neither this Agreement nor any of the activities contemplated hereby shall be deemed to create any partnership, joint venture, agency or employer-employee relationship between CSC Logic and Client.
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13.
|
Force Majeure. Notwithstanding anything herein to the contrary, CSC Logic shall not be considered in default hereunder or have any liability to Client for any failure to perform if such failure arises out of causes beyond the control of CSC Logic. Such causes include, but are not limited to, acts of God or public enemy, acts of the government acting in any capacity, fires, floods, epidemics, quarantine restrictions, strikes, war, terroristic or criminal acts, civil disturbance, riots, rebellion, freight embargoes, degradation of telephone or other communication service or weather conditions.
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14.
|
Default.
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14.1
|
Notice and Cure Period, Rights, After Default. If Client becomes Insolvent, as further described in Section 14.2 below, Client is not in compliance with Section 5.4, or if Client shall fail to pay to CSC Logic any amount due hereunder within five (5) days after receipt of the notice that the same is past due, or if either party breaches or fails to comply with any other provision of this Agreement and such failure continues for a period of thirty (30) days after receipt of written notice thereof, then CSC Logic or Client, as the case may be, shall be deemed to be in default and the other party shall have the right (i) to terminate this Agreement immediately, and (ii) in addition, but subject to any limitations contained in this Agreement, to pursue any and all rights which may be available to it. Termination of this Agreement shall not relieve Client from payment of all amounts of money owed by Client to CSC Logic. Notwithstanding anything in this Agreement to the contrary, so long as Client is in default under this Agreement or any other agreement in effect between CSC Logic and Client, CSC Logic shall have no obligation to perform the CSC Logic Duties while the default continues.
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14.2
|
Insolvency of Client. Client shall have become “Insolvent,” for purposes of Section 14.1 above if: (a) Client becomes bankrupt or insolvent, admits its inability to or fails to pay generally its debts as they become due or otherwise admits its insolvency, or ceases or threatens to cease carrying on business; (b) Client makes a general assignment for the benefit of creditors, any proceeding seeking general relief as a debtor, any proceeding is initiated by or against Client to declare it bankrupt or insolvent, or seeking liquidation, winding-up, reorganization, arrangement or composition of its debts or for an order for similar relief under any law relating to bankruptcy, insolvency or relief of debtors or seeking appointment of a receiver, trustee or other similar official for the party of for any substantial part of its assets, and, in the case of a proceeding instituted against Client, such proceeding has not been dismissed or stayed within thirty (30) days; or (c) a receiver or similar official is appointed with respect to a substantial portion of the assets of Client by a court or a creditor and such appointment has not been terminated within thirty (30) days of such appointment.
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14.3
|
Injunctive Relief. The parties acknowledge that if either party fails to comply with the provisions of Sections 8.2, 10 or 11 hereof, the other party may suffer irreparable harm for which there may be no adequate remedy at law. Accordingly, if either party fails to comply with any provision of said sections, then the other party will be entitled immediately to injunctive relief or any other appropriate equitable remedy. Further, if such failure continues for thirty (30) days after receipt of notice thereof from the other party, then such other party shall also have all of the rights available to it as if there was a default under Section 14.1 hereof.
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CONFIDENTIAL AND PROPRIETARY
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14.4
|
Time for Bringing Suit. No action may be brought by either party against the other party in connection with this Agreement more than two (2) years after the cause of action arose, except that any action by CSC Logic for nonpayment of any amount of money due to CSC Logic hereunder may be brought at any time subject to the applicable statute of limitations.
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14.5
|
Attorney or Collection Fees. If CSC Logic incurs any cost or fee from an attorney, collection agency or otherwise in attempting to collect any amount due it hereunder, then Client shall pay to CSC Logic upon demand the amount of such cost or fee. Further, in the event of any litigation between the parties in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable costs and attorney fees incurred in enforcing this Agreement and any related judgments entered.
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14.6
|
No Waiver of Remedies. The failure by either party to exercise any option or right upon a default or breach of any of the terms of this Agreement shall not be construed as waiving such right or option at a later date. Further, all of such rights or options shall be cumulative, and the exercise of any one such right or option shall not preclude the exercise of any other right or option. No exercise of, or delay or omission to exercise, the rights and powers herein granted shall be held to exhaust the same or be construed as a waiver thereof, and every such right and power may be exercised at any time and from time to time.
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15.
|
Miscellaneous.
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15.1
|
Notices. Any notice which is required or permitted to be given hereunder shall be in writing and shall be effective upon receipt, and shall be delivered as follows: (a) by United States mail, with return receipt requested, postage prepaid; (b) by Federal Express or other nationally recognized overnight delivery service; or (c) delivered by telecopy as follows:
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| If to CSC Logic: | ||
| CSC Logic, Inc. | ||
| 0000 Xxxxxxxx Xxxxxxx, Xxxxx 0X | ||
| Xxxxxx, Xxxxx 00000 | ||
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Attn: Legal
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If to Client:
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Name:
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| Address: | ||
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Telecopy No
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Attn:
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Either party at any time or times may change the foregoing address or telecopy information, pursuant to notice to the other party duly given in accordance with requirements of this Section 15.1.
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15.2
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Audit. Client and its authorized agents shall have the right, at its expense and at reasonable times and upon reasonable notice, to audit the applicable books and records of Client's program in CSC Logic's office.
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15.3
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Assignment. Client may not transfer, whether by assignment, sublicense, merger, consolidation, operation of law, or otherwise, any rights or obligations under this Agreement without CSC Logic's prior written consent. The consent to any particular assignment shall not constitute consent to further assignment. This Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any transaction in contravention of this Section shall be null and void.
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15.4
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Captions. All captions and headings to the sections and subsections of this Agreement have been inserted for convenience of reference only and shall not be construed as a part hereof.
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15.5
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Advertising Neither party shall publish or use the name of the other in any manner or publication without the prior consent of the other, except as required by law or legal process, in which event notice thereof shall be promptly given. Without limiting the generality of the foregoing, no letter of general mailing or advertisement or other communication to be sent to a policyholder or customer of Client may contain the name CSC Logic without CSC Logic's prior written approval.
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15.6
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Indemnity Client hereby agrees to indemnify, defend and hold harmless CSC Logic and its shareholders, directors, officers, agents and employees from all claims, costs, penalties, damages, liability, obligation, cause of action, and all fees, expenses and costs associated therewith, including attorneys fees, arising from Client's breach or nonperformance hereunder or from CSC Logic's faithful performance of the CSC Logic Duties hereunder or claimed by any insured of Client, any customer of any insured, or any person claiming under or through any of them.
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15.7
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Governing Law, Jurisdiction, Venue. THIS AGREEMENT IS BEING MADE AND ENTERED INTO IN THE COUNTY OF DALLAS, STATE OF TEXAS AND, IT SHALL BE GOVERNED AND CONSTRUED UNDER THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO TEXAS’ CONFLICTS OF LAWS PRINCIPLES. THE PARTIES AGREE TO THE EXCLUSIVE JURISDICTION OF AND VENUE IN THE STATE AND FEDERAL COURTS IN DALLAS COUNTY, TEXAS AND WAIVE ALL RIGHTS TO VENUE AND JURISDICTION IN ANY OTHER FORUM. BECAUSE THE PARTIES AGREE THAT THIS CONTRACT IS NOT A CONTRACT FOR THE SALE OF GOODS, THIS AGREEMENT SHALL NOT BE GOVERNED BY ANY CODIFICATION OF ARTICLE 2 OR 2A OF THE UNIFORM COMMERCIAL CODE, OR ANY CODIFICATION OF THE UNIFORM COMPUTER INFORMATION TECHNOLOGY ACT OR ANY REFERENCE TO THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
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15.8
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Severability. If any clause or provision of this Agreement becomes or is held by a court of competent jurisdiction to be illegal, invalid or unenforceable under any present or future law effective during the term hereof, the remainder of this Agreement shall not be affected thereby.
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15.9
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Survival of Certain Provisions. Notwithstanding anything herein to the contrary, the obligations of the parties under Sections 2.2, 6, 8.2, 8.3, 9, 10, 11, 14.2, 14.3, 14.4, 14.5, 14.6, 15.6, 15.7 and 15.8 hereof shall survive any expiration or termination of this Agreement.
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15.10
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Entire Agreement. This Agreement together with its attached Exhibits, which are hereby incorporated herein as if set forth in full herein, constitutes the entire agreement between the parties with respect to the subject matter hereof, and it supersedes all prior or contemporaneous agreements, contracts, understandings, proposals and negotiations with respect to such subject matter. This Agreement may be amended, waived or supplemented only by a written instrument duly executed by both CSC Logic and Client. The terms and conditions of this Agreement shall prevail notwithstanding any additional or different terms or conditions of any purchase order that may be issued by Client.
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15.11
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Multiple Counterparts. This Agreement may be signed in multiple counterparts and all such counterparts shall be treated as one document. The signatures of the parties need not appear on the same copy of this Agreement, so long as each party signs at least one copy of this Agreement and the copies contain the same terms.
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15.12
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Construction. The headings used herein are inserted only as a matter of convenience and for reference and shall not affect the construction or interpretation of this Agreement. Where context so indicates, a word in the singular form shall include the plural, a word in the masculine form shall include the feminine and vice-versa. The word “including” and similar constructions (such as “for example”, “such as”, and “e.g.”) shall mean “including, without limitation”, throughout this Agreement. The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement shall not be construed in favor of or against any party by reason of the extent to which the party or its professional advisors participated in the preparation of this Agreement.
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15.13
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Third Party Beneficiaries. Each party intends that this Agreement shall not benefit, or create any right or cause of action in or on behalf of, any person or entity other than Client and CSC Logic.
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15.14
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Covenant of Further Assurances. Client and CSC Logic covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, each of Client and CSC Logic shall execute and deliver any further legal instruments and perform any acts which are or may become necessary to effectuate the purposes of this Agreement.
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[Remainder of page intentionally left blank. Signature page follows.]
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CSC Logic, Inc.
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IN WITNESS WHEREOF, the parties, by their duly authorized officers whose signatures are set forth below, have executed this Agreement as of the Effective Date set forth above.
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CSC Logic, Inc.
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Client name and address
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0000 Xxxxxxxx Xxxxxxx, Xxxxx 0X
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Xxxxxx, Xxxxx 00000
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| By: | By: | |||||
| Name: | Name: | |||||
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(printed)
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(printed)
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| Title: | Title: | |||||
| Execution Date: | Execution Date: |
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CSC Logic, Inc.
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EXHIBIT A
SERVICES / STATEMENT OF WORK
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CSC Logic, Inc.
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EXHIBIT B
PRICING
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CSC Logic, Inc.
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Page 28 of 28
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