EXHIBIT 10.6
INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED, IS OMITTED AND IS NOTED WITH **.
A COPY OF THIS AGREEMENT, INCLUDING ALL INFORMATION FOR WHICH CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
THIS AGREEMENT, made this 7 day of April, 1997, by and between Equifax
Credit Information Services, Inc., a Georgia corporation, with its principal
place of business at 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx 00000
("Equifax"), Digital Matrix Systems ("Processor") and CreditComm Services, LLC,
a financial information service of Loeb Holding Corporation, New York, with its
principal place of business at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Prosperity
Business Campus, Xxxxxxx, XX 00000 ("CreditComm").
WITNESSETH:
WHEREAS, CreditComm and/or Processor ("CreditComm/Processor") has the
computer capability to combine the separate automated credit reporting files
from different credit reporting entities into one credit report which is
provided to the consumer subject of the report information, and is called
CreditComm's CreditCompare ("CreditCompare"); and
WHEREAS, CreditComm/Processor has the computer capability to perform
credit monitoring services ("Credit Monitoring") by comparing current consumer
credit information to a previous report and providing its subscribers with a
list of certain new information appearing in that consumer's credit file; and
WHEREAS, Processor will perform certain data processing services as an
agent of CreditComm; and
WHEREAS, Equifax publishes and distributes individual consumer credit
report information known as "Equifax credit information;" and
WHEREAS, CreditComm desires, and Equifax agrees, to allow CreditComm to
make Equifax credit information available to consumers under certain
circumstances, as part of CreditComm's CreditCompare and Credit Monitoring
Services.
NOW, THEREFORE, in consideration of the premises and of these mutual
covenants and agreements, the parties agree as follows:
1. Provision of Equifax Credit Information.
1.1 Subject to the terms and conditions of this Agreement, on a
non-exclusive basis, Equifax authorizes CreditComm to access
and provide Equifax credit information, as available, directly
to the individual consumer to whom the Equifax credit
information relates ("Consumer Subject"), as part of
CreditComm/Processor's CreditCompare and Credit Monitoring
services under the following terms and conditions:
(A) Pursuant to:
(i) the written instructions of the Consumer
Subject that were provided to CreditComm by
the Consumer Subject;
1.2 (A) CreditComm will use reasonable procedures to properly
identify the Consumer Subject of the CreditCompare or
Credit Monitoring Report.
(B) CreditComm/Processor will not provide, either
directly or indirectly, the CreditCompare. Credit
Monitoring report, or the Equifax credit information
accessed for a CreditCompare, or a Credit Monitoring
report, to any Creditor, but is only authorized to
provide the CreditCompare or Credit Monitoring report
to the Consumer Subject.
1.3 Equifax reserves the right in its sole discretion to deny
access to Equifax credit information for the Consumer Subjects
of certain Creditors, even though otherwise "qualified."
CreditComm and Processor release Equifax from any and all
claims, demands, actions, costs, damages.
expenses, compensation, penalties, liabilities and obligations
of any kind arising out of or relating to such a denial.
Further, CreditComm and Processor covenant not to xxx or
maintain any claim, cause of action, demand, cross-action,
counterclaim, third-party action or other form of pleading
against Equifax rising out of or relating to such a denial.
1.4 CreditComm and Processor will establish strict procedures so
that CreditComm's employees or agents do not access Equifax
credit information except as set forth in Paragraphs 1.1 and
1.2 above.
1.5 (A) In relaying any and all Equifax credit information to
Consumer Subjects, CreditComm shall, in all
instances, faithfully, fully and completely transmit
the Equifax credit information as part of its
CreditCompare and Credit Monitoring services and
include the date the information was last checked or
revised by Equifax and the full name and mailing
address of the Equifax office identified by Equifax
as providing the Equifax credit information.
(B) CreditComm and Processor will not maintain, sell,
copy, allow to be copied, capture, merge the
Information with, nor allow it to become a part of, a
list of any kind from any other source, including any
information received from Equifax in connection with
any other project, or otherwise retain in any manner,
in whole or in part, any Equifax credit information
provided to CreditComm, Processor, Creditors or
Consumer Subjects; except that CreditComm may capture
and retain that information and the date and time of
inquiries solely for the purposes of (a) audit trail;
(b) calculation of the amount of usage of Equifax
credit information and provision of specifics
relating to that usage to Consumer Subjects; (c)
billing, and (d) in connection with its consumer
disclosure responsibilities. In no event may the
Equifax credit information retained by CreditComm be
used for future reporting purposes.
(C) In connection with the CreditComm Monitoring service,
Processor may maintain Equifax Information for a
maximum of forty (40) days from the date received, if
the monitoring service is performed on a monthly
basis; if performed on a quarterly basis, Processor
may maintain Equifax Information for a maximum of one
hundred (100) days from the date received. Processor
must either return the data to Equifax or completely
purge the data in its entirety from any and all DMS
systems, processors, platforms, programs, files, or
CPU's. This data purge must be pre-programmed and
occur no later than the specified maximum storage
date of 40 or 100 days. Processor agrees to notify
Equifax in writing how such data will be
pre-programmed for destruction (prior to execution of
said Agreement).
1.6 Within ten days of the signing of this Agreement, CreditComm
will provide to Equifax in writing CreditComm's policies and
procedures for answering questions from consumers about
Equifax credit information. CreditComm will be the first point
of contact for inquiries from consumers following disclosure
of their information. However, Equifax credit information in
the CreditCompare and Credit Monitoring services that is
disputed to CreditComm by the consumer will be referred to the
Equifax office that is the source of that information for
reinvestigation.
1.7 (A) In connection with CreditCompare, CreditComm/
Processors' requests for Equifax credit information
for CreditCompare will normally be by way of direct
computer system-to-system access through Equifax's
Automated Delivery Services unit. However,
CreditComm/Processor owns or leases remote
terminal(s), and those terminal(s) will be operated
only by certain of its employees trained by Equifax.
At least two of CreditComm's employees will be so
trained by Equifax prior to receiving Equifax credit
information, and at least two trained operators will
be available to operate the terminal(s) during the
term of this Agreement.
(B) CreditComm/Processor will take all necessary measures
to prevent unauthorized system-to-system access and
unauthorized use of the terminal(s) by any person
other than designated operators, and will establish
and enforce policies forbidding its employees to
obtain information on themselves or associates.
(C) With regard to the operation of the system-to-system
access or the terminal(s), Equifax is not liable for
transmission distortion, interruptions or failure or
for any resulting consequential or special damages
whatsoever.
1.8 In connection with the Credit Monitoring service, Equifax or
CreditComm will provide Processor with computer tapes of names
and addresses of individuals who have subscribed in writing to
CreditComm's Credit Monitoring service. Equifax will deliver
Equifax credit information about those individuals to
Processor. The Equifax credit information will remain the sole
property of Equifax and is to be used only as directed by
CreditComm and Equifax for the specific purpose of providing
CreditComm's Credit Monitoring program and for no other
purpose. Processor will process the computer tapes received
from Equifax pursuant to instructions of CreditComm and
Equifax.
1.9 CreditComm will pay Equifax promptly for all Equifax credit
Information requested by CreditComm on behalf of Consumer
Subjects according to the then-current rate schedule of cash
prices for these services. In addition, CreditComm will pay
Equifax for any applicable taxes, charges for any special
telephone services or any other special services rendered by
Equifax. The prices are volume driven as provided on Addendum
"A" and Addendum "B" attached to this Agreement, which
schedules may be adjusted by Equifax upon thirty days notice
to CreditComm. CreditComm will pay Equifax an annual minimum
billing of $100,000, payable in equal monthly installments,
for credit files sold to CreditComm. CreditComm may select a
higher annual minimum to achieve a lower per unit cost. The
parties will review CreditComm's actual volume every six
months and the prices will be adjusted to reflect the actual
volume.
2. PROMOTION AND TRAINING.
2.1 Prior to its publication and release, Equifax must review and
approve all CreditComm-created advertising, marketing and
promotional material that describes Equifax credit information
or which refers to the nature or capabilities of Equifax or
Equifax credit information, or otherwise mentions or refers to
Equifax by name. This includes samples of the products
CreditComm will deliver to consumers which will contain
Equifax information. Further, prior to its publication and
release, Equifax must review and approve all advertising,
marketing and promotional material regarding Equifax credit
information that CreditComm proposes to provide to Creditors
and consumers; and that Creditors propose to provide to
consumers regarding the CreditCompare and Credit Monitoring
services. Equifax will be provided a minimum of ten business
days in which to review and approve advertising, marketing and
promotional material.
3. RIGHT TO CONDUCT TECHNICAL REVIEWS AND AUDITS.
3.1 Equifax may conduct technical reviews of CreditComm/
Processor's procedures to analyze how Equifax credit
information is merged, re-formatted or re-packaged in the
CreditCompare and Credit Monitoring services. Further, Equifax
may conduct reasonable audits of the procedures and practices
of CreditComm and Creditors in connection with the compliance
by each of them with their respective obligations and
responsibilities under this Agreement. Further, Equifax may
immediately suspend CreditComm's rights of access to, and use
of, Equifax credit information
if it comes to Equifax' attention that CreditComm, Processor
or any Creditor, is not in compliance with its respective
obligations in connection with the access and use of Equifax
credit information. In that event, Equifax will immediately
notify CreditComm of those circumstances.
3.2 CreditComm will, at its expense and as reasonably requested by
Equifax from time to time, contract with an independent
marketing research firm to research, determine and monitor the
perceptions of consumers regarding CreditComm's CreditCompare
and Credit Monitoring services. The results of each such study
will be provided directly to Equifax by the independent
marketing research firm.
4. Release and Covenant With Respect to Accuracy of Equifax Credit
Information.
CreditComm and Processor recognize that the accuracy of any information
furnished is not guaranteed by Equifax, and CreditComm and Processor
release Equifax and Equifax' parent, sister, and affiliated companies,
and its and their officers, agents, employees and independent
contractors from any liability for any negligence in connection with
the preparation of Equifax credit information and from any loss or
expense suffered by CreditComm. Processor, Creditors or Consumer
Subjects or others resulting directly or indirectly from Equifax credit
information. CreditComm, and on behalf of Processor and Creditors,
covenants not to xxx or maintain any claim, cause of action, demand,
cross-action, counterclaim, third-party action or other form of
pleading against Equifax, Equifax' parent, sister, and affiliated
companies, and its and their officers, agents, employees and
independent contractors arising out of or relating in any way to the
accuracy or inaccuracy, validity or non-validity, of any of the Equifax
credit information.
5. Disclaimer of Warranties.
Equifax makes no representations, warranties or guarantees, express or
implied, other than those expressed in this Agreement. EXCEPT AS
EXPRESSLY STATED IN THIS AGREEMENT, EQUIFAX MAKES AND THERE ARE NO
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, RESPECTING THE EQUIFAX AUTOMATED CREDIT REPORTING SYSTEM
(ACROPAC SYSTEM(TM)) OR ANY OTHER MACHINERY, EQUIPMENT, MATERIALS,
PROGRAMMING AIDS OR OTHER ITEMS UTILIZED BY CREDITCOMM IN CONNECTION
WITH OR RELATED TO, OR RESPECTING THE ACCURACY OF ANY EQUIFAX CREDIT
INFORMATION FURNISHED BY EQUIFAX TO CREDITCOMM OR TO ANY OR ANY
THIRD-PARTY MARKETERS, CREDITORS OR CONSUMER SUBJECTS.
6. Indemnification by CreditComm.
CreditComm and Processor will indemnify and hold harmless Equifax,
Equifax's parent, sister and affiliated companies, and its and their
directors, officers, employees, agents, independent contractors,
successors and assigns, from and against and with respect to any and
all liabilities, claims, losses, demands, actions, causes of action,
damages, expenses (including, without limitation, attorneys' fees and
costs of litigation), or liability, arising from or in any manner
related to any claim, demand or suit, whether or not meritorious,
brought or asserted by any third party in any way arising out of any
actual or alleged negligence or intentional act of CreditComm or
Processor, whether or not any negligence of Equifax is alleged to have
been contributory thereto, the failure of CreditComm to duly and fully
perform its obligations under this Agreement, the failure of CreditComm
or Processor to insure the provision of reliable and accurate Equifax
credit information, misuse of or improper access to, Equifax credit
information by CreditComm or Processor, Third-Party Marketers or
Creditors or the failure of CreditComm or Processor to comply with
applicable laws or regulations.
7. Confidentiality.
CreditComm and Processor acknowledge that Equifax owns an automated
credit reporting system (ACROPAC System(TM)) and all interests,
programs, codes, software documentation or other appurtenances related
to it or derived from it. CreditComm and Processor further acknowledge
that the ACROPAC System(TM) and any codes, procedures or ACROPAC
System(TM) documentation are confidential and proprietary to Equifax.
During the term of this Agreement and thereafter, CreditComm and
Processor will maintain, and will cause its directors, officers,
employees and agents to maintain, in strict confidence, and not to
disclose, except as expressly permitted by this Agreement, to any other
person or entity, any such information, including Equifax credit
information, materials and know-how as may be provided to CreditComm or
Processor by Equifax during the term of this Agreement, and to take
necessary actions to protect against disclosure thereof. CreditComm and
Processor will not make use of any such information, including Equifax
credit information, materials and know-how whatsoever except solely for
the purpose of this Agreement, in accordance with the terms and during
the existence of this Agreement. Upon the termination of this
Agreement, CreditComm and Processor will return to Equifax all manuals,
materials and documents pertaining to Equifax or the ACROPAC System
(TM) obtained from Equifax during the term of this Agreement, and all
copies and partial copies thereof.
8. Relationship of Parties.
The parties to this Agreement are each independent contractors and
nothing contained in this Agreement will be construed as creating a
joint venture, partnership, licensor-licensee, principal-agent or
mutual agency relationship between or among the parties and no party
will, by virtue of this Agreement, have any right or power to create
any obligation, express or implied, on behalf of any other party. No
party, nor any employee of a party, will be deemed to be an employee of
another party by virtue of this Agreement. The parties acknowledge that
the services provided by Equifax are not provided on an exclusive basis
and that Equifax may provide similar services to other parties or may
itself provide services similar to those provided by CreditComm and
Processor.
9. No Third-Party Benefits.
Equifax and CreditComm acknowledge and intend that this Agreement was
entered into solely for the respective benefit of each of them and
their respective successors and assigns and nothing in this Agreement
will be construed as giving any person, firm, corporation or other
entity (including, without limitation to the foregoing, any Processor,
or Consumer Subject), other than the parties to this Agreement and
their respective successors and permitted assigns, any right, remedy or
claim under or in respect of this Agreement or any provision of it.
10. Assignment.
The parties acknowledge the special and unique purposes of this
Agreement and, therefore, notwithstanding any other provisions to the
contrary contained in this Agreement, neither this Agreement nor any of
the rights or obligations in it will be assignable by CreditComm
without the prior written consent of Equifax. which consent shall not
be unreasonably withheld (taking into account the nature of the
services provided under this Agreement, the economic or other interests
of Equifax, competitive effects, any circumstances which may affect the
performance of this Agreement, the protection of sensitive or
proprietary commercial information, the operations and integrity of the
ACROPAC System(TM), the protection of data in the ACROPAC System(TM)
and the interests of other entities utilizing that System). Any
dissolution, merger, consolidation or other reorganization of
CreditComm, the sale or other transfer of all or substantially all of
the assets or properties of CreditComm or the sale or other transfer of
a
controlling percentage of the corporate stock of CreditComm, will
constitute an assignment of this Agreement for all purposes of this
Paragraph 10. The term "controlling percentage" for the purposes of
this Paragraph 10 means the ownership of stock possessing, and of the
right to exercise, at least 50% of the total combined voting power of
any class or all classes of stock of such a party, issued, outstanding
and entitled to vote for the election of directors, whether such
ownership be direct ownership or indirect ownership.
11. Force Majeure.
Notwithstanding any provisions to the contrary contained in this
Agreement, no party to this Agreement will be liable to the other party
for any delay or interruption in performance as to any obligation under
this Agreement resulting from governmental emergency orders, judicial
or governmental action, emergency regulations, sabotage, riots,
vandalism, labor strikes, or disputes, acts of God, fires, electrical
failure, major computer hardware or software failures, equipment
delivery delays, acts of third parties, or any other cause, if such
delay or interruption in performance is beyond its reasonable control.
12. Contact Persons.
Each party to this Agreement will designate one person within its
organization that is responsible for the relationship between the
parties and for compliance with the terms and conditions of this
Agreement.
(a) For CreditComm Services LLC:
Name : Xxxxx Xxxxxxxxxx
Address: CreditComm Services LLC
0000 Xxxxxxxxxx Xxx, Xxxxx 000
Xxxxxxx, XX, 00000
Telephone: 000-000-0000
(b) For Equifax:
Name: Xxx X. Xxxxxx Xx.
Address: Equifax Credit Information Services, Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
(c) For Digital Matrix Systems:
Name: Xxxxx XxXxxxx
Address:
Telephone:
Each party may, by notice given pursuant to Paragraph 13, change its
designation to a person other than the person identified above.
13. Notices.
All notices, requests, demands, and other communications under this
Agreement will be in writing except as expressly stated in this
Agreement, and will be deemed duly given when received upon delivery by
hand or by certified mail, addressed as follows:
(a) If to CreditComm Services, LLC:
Name: Xxxxx Xxxxxxxxxx
Address: CreditComm Services LLC
0000 Xxxxxxxxxx Xxx,Xxxxx 000
Xxxxxxx, XX, 00000
Telephone: 000-000-0000
(b) If to Equifax:
Equifax Credit Information Services. Inc.
0000 Xxxxxxxxx Xxxxxx. XX
Xxxx Xxxxxx Xxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Contract Administrator
(c) If to Digital Matrix Systems:
Name: Xxxxx XxXxxxx
Address:
Telephone:
The parties hereto may, by notice, designate any further or different
addresses to which notices will be sent.
14. Severability.
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, such a holding will not invalidate
or render unenforceable any other provision of this Agreement.
15. Exhibits.
All Exhibits attached to this Agreement are a part at this Agreement
and are expressly incorporated into it. All blanks in the Exhibits, if
any, will be completed as required in order to consummate the
transactions contemplated and in accordance with this Agreement.
16. Injunctive Relief.
CreditComm and Processor acknowledge that use or disclosure of the
information described by Paragraph 7 of this Agreement in a manner
inconsistent with this Agreement will give rise to irreparable injury
to Equifax which cannot be adequately compensated in damages, and that
Equifax may seek and obtain equitable, injunctive relief to prevent or
restrain the unauthorized use or disclosure, together with any other
remedies which may be available to Equifax.
17. Use of Equifax Services.
Equifax does not convey or transfer, nor does CreditComm, or any
Processor, Third-Party Marketer or Creditor, obtain any right or
interest in, any of the programs, systems, data, materials, or credit
information utilized or provided by Equifax in the performance of this
Agreement.
16. Heading.
The section and other headings in this Agreement are inserted solely as
a matter of convenience for reference and are not a part at this
Agreement.
19. Governing Law.
This Agreement will be governed by and construed in accordance with the
laws of the State of Georgia.
20. Waiver of Rights.
Failure of any party to enforce any of its respective rights or
remedies under this Agreement with respect to any specific act or
failure to act of any party will not constitute a waiver of the rights
of that party to enforce those rights and remedies with respect to any
other or subsequent act or failure to act.
21. Entire Agreement.
This Agreement, including its Exhibits, constitutes the entire
Agreement between the parties and supersedes and cancels any and all
prior agreements between the parties relating to the subject matter of
this Agreement. No changes in this Agreement may be made except in
writing signed by both parties.
22. Term and Termination.
This Agreement is without a fixed term, and remains in force and effect
until written notice of cancellation, for any or no reason, is given by
either party at least 30 calendar days prior to the effective date of
the cancellation. However, if CreditComm is delinquent in the payment
of any charges due Equifax, or is in violation of any of the terms of
this Agreement, then Equifax may, at its election, discontinue
providing services to CreditComm and cancel this Agreement immediately
by written notice to CreditComm. In the event of termination of this
Agreement for any reason, the provisions at the foregoing paragraphs
will remain in full force and effect as to all Equifax credit
information which CreditComm has requested or received from Equifax
prior to the date of cancellation.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
EQUIFAX CREDIT INFORMATION SERVICES, INC.
("Equifax")
By: _____________________________________________
Name Printed & Title
_____________________________________________
Name Signature
CREDITCOMM SERVICES, LLC
("Creditcomm")
By: _____________________________________________
Name Printed & Title
_____________________________________________
Name Signature
DIGITAL MATRIX SYSTEMS
("Processor")
By: _____________________________________________
Name Printed & Title
_____________________________________________
Name Signature
_____________________________________________
Date
April 2, 1997
FIRST ADDENDUM TO AGREEMENT CONSUMER DISCLOSURE SERVICE
AMONG EQUIFAX CREDIT INFORMATION SERVICES, INC.,
INTERSECTIONS INC. AND DIGITAL MATRIX SYSTEMS,
This First Addendum (the "First Addendum") to the "Agreement Consumer
Disclosure Service" among Equifax Credit Information Services, Inc.,
Intersections Inc. and Digital Matrix Systems, _____ (the "Agreement") is
entered into as of the 30th day of March, 2001, among Equifax Credit Information
Services, Inc., a Georgia corporation, with its principal place of business at
0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 ("Equifax"), Intersections Inc., a
Delaware corporation, with its principal place of business at 00000 Xxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 ("Intersections") and Digital Matrix Systems, Inc, a
Texas corporation, with its principal place of business at 00000 Xxxxxxxx Xxxxx,
0xx xxxxx, Xxxxxxx, Xxxxx, 00000 ("Processor").
WHEREAS, Equifax, CreditComm Services, LLC, and Processor entered into
the Agreement effective April 7, 1997, regulating the provision, access to, and
use of certain Equifax credit information and the resale of that information in
the form of "CreditCompare" and "Credit Monitoring" services to Consumer
Subjects, all on the terms and conditions set forth therein; and
WHEREAS, CreditComm Services, LLC, reorganized and changed its name
effective August 24, 1999, to Intersections Inc., and Intersections is the
successor by operation of law to CreditComm Services, LLC;and
WHEREAS, the parties desire to amend the Agreement to permit
Intersections to access and transmit Equifax credit information, as available,
to Consumer Subjects in the form of Intersections' CreditCompare and Credit
Monitoring services via the Internet, upon the terms and conditions hereinafter
set forth; and
WHEREAS, other than amending the Agreement as set forth above, the
parties desire to reaffirm each of the terms and conditions of the Agreement.
NOW, THEREFORE, in consideration of the premises and mutual covenants
set forth herein, and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. RECITALS
The recitals shall form a constituent part of this First Addendum.
2. DEFINITIONS AND ADDITIONAL CONDITIONS
All capitalized terms in this First Addendum which are not specifically
defined herein shall have the meaning set forth in the Agreement. For the
purposes of this First Addendum, the following additional terms have the
meanings, and shall be subject to the conditions, set forth below:
(a) "Electronic Signature" shall have the meaning set forth in
Section 106(5) of the Electronic Signatures in Global and National Commerce Act,
as adopted June 30, 2000, and codified at 15 U.S.C. Section 7001 et seq. (the
"Electronic Signatures Act"), and shall further mean for purposes hereof an
electronic or digital signature that fulfills the requirements of the Electronic
Signatures Act and the requirements of any state statute, regulation, or rule
which is exempted from preemption by the Electronic Signatures Act pursuant to
Section 102(a) of such Act, including without limitation, a state enactment or
adoption of the Uniform Electronic Transactions Act.
(b) "Internet" shall mean for purposes hereof, and be limited to,
the "World Wide Web," which is a global system of servers that support documents
formatted in HTML.
(c) "Xxxx(s)" shall mean any and all existing or future
trademarks, trade names or service marks owned or used by Equifax or any of its
affiliated companies. Any use by Intersections of the Marks shall be on and
subject to the terms of the nonexclusive license set forth in Exhibit "A,"
attached hereto and incorporated herein by reference.
(d) "Service Area" shall mean the United States of America, unless
such Service Area is modified by mutual agreement of the parties.
(e) "Web Site" shall mean the site owned and operated by
Intersections and accessible to users of the Internet under the domain name
"Xxxxxxxxxxxxx.xxx" and the collection of web pages at such Web Site, or such
other web site (and collection of web pages at such site) that fulfills each of
the following terms: (i) is (A) wholly owned by Intersections, or (B) a branded
site operated by Intersections for a third party without any right or ability of
web site data access by such third party, (ii) resides on the same
Intersections-owned network and system infrastructure as Xxxxxxxxxxxxx.xxx and
as certified by XXXX.xxx, (iii) utilizes the same Intersections-owned servers
and server configuration as Xxxxxxxxxxxxx.xxx, (iv) fulfills and is subject to
all of the requirements of this First Addendum, and (v) is listed on Exhibit "B"
attached hereto and made a part hereof.
3. Internet Consumer Delivery Authorization
On and subject to the terms and conditions of this First
Addendum, Equifax hereby authorizes Intersections, on a non-exclusive basis,
to obtain from Equifax in the manner prescribed by Sections 1.7 and 1.8 of the
Agreement and to make available at the Web Site, Equifax credit information, as
available, for access through the Internet directly to and by Consumer Subjects
resident in the Service Area, by delivery in the form of (i) the CreditCompare
service and (ii) the Credit Monitoring service, and Equifax agrees to provide
such credit information to Intersections, as available and on a non-exclusive
basis. It shall be the responsibility of Intersections to comply with all
applicable rules, regulations, and laws associated with or governing the
delivery and sale of information of the kind contemplated hereunder to the
Consumer Subjects via the Internet.
4. Identification and Authentication of Consumer Subjects: Delivery to
Consumer Subjects
a. Intersections shall verify the identity of each
Consumer Subject who requests to be provided Equifax credit information.
Intersections shall request credit information from Equifax only for those Con-
sumer Subjects whose identity Intersections has authenticated in accordance
with the requirements of this First Addendum. Intersections shall insure that
each Consumer Subject does not resell or otherwise provide or transfer the
Consumer Subject's credit report or the Equifax credit information contained
therein in whole or in part to any other person or entity.
b With regard to the authentication of Consumer
Subjects requesting Equifax credit information via the Web Site, all such
authentications conducted on Consumer Subjects will be performed: (i) under and
governed by the terms and conditions of the Services Agreement by and between
Intersections and Equifax Secure, Inc. effective on the 21st day of December,
2000 as set forth in Exhibit "C" attached hereto and incorporated herein by
reference, or (ii) by such other high assurance authentication methodology
approved by Equifax in writing and conforming to the Equifax Internet Security
Requirements as set forth in Exhibit "D" attached hereto and incorporated herein
by reference.
c. Prior to the delivery of Equifax credit information
to a Consumer Subject through the Web Site, Intersections shall disclose to, and
obtain the valid consent of the Consumer Subject to, terms, disclaimers, and
acknowledgments concerning the accuracy of the Equifax credit information, the
Consumer Subject's responsibilities under law, the restrictions on access to the
Equifax credit information, and related matters, in language which shall be
attached hereto and made a part hereof as Exhibit "E". It shall be a
precondition of the Internet Consumer Delivery Authorization set forth in
Section 3 hereof that the language of Exhibit "E" shall comprise, in addition to
the foregoing matters, sufficient written authorization of the Consumer Subject
as prescribed under Section 5 hereof, and that the language of Exhibit "E" shall
be acceptable to Equifax; provided, however, that such acceptance by Equifax
notwithstanding, Equifax shall not be nor shall it be deemed to be responsible
or liable in any way for the content or efficacy of such language and
Intersections agrees and acknowledges that it shall remain solely responsible
and liable therefor. Intersections shall fully disclose to Consumer Subjects its
Internet data privacy and personal information usage and disclosure policies
and shall adhere to those policies at all times. Intersections shall ensure that
its privacy policies conform to the requirements of all applicable Laws and
industry best practices.
5. Written Authorization of Consumer Subjects
Intersections shall provide the Equifax credit information to
the Consumer Subject only pursuant to the written instructions of the Consumer
Subject as described in Section 1.1(A) of the Agreement and as necessary to
comply with the requirements of the Fair Credit Reporting Act, 15 U.S.C. 1681
et. seq., as
2
amended ("FCRA"). Provided, however, that written authorization of the Consumer
Subject may be obtained by Intersections in the form of either (i) an original
or facsimile copy of a manual signature on paper, or (ii) an Electronic
Signature as defined herein and meeting all other requirements of law.
6. Internet Security Requirements
Intersections agrees to comply with the Equifax Internet Security
Requirements ("Requirements"), as these Requirements may be updated or modified
from time to time by Equifax in its discretion. Additionally, Intersections
agrees to utilize the encryption standard required by Equifax, as the same may
be modified or upgraded from time to time (the "Encryption Standard"), to
transmit all Equifax credit information and Equifax-issued subscriber codes and
passwords to and from both Equifax and the Consumer Subjects. Further, the
operating environment Intersections uses to receive and request the Equifax
credit information and to store, deliver, and transmit the Equifax credit
information shall meet or exceed generally accepted industry standards for
Internet security, to permit Web Site access as contemplated herein with a
maximum degree of certainty that no party other than the Consumer Subject
obtains Equifax credit information concerning that individual. Intersections
shall further ensure that:
a. Equifax credit information shall be adequately
protected when stored on Intersections transaction servers. Intersections
transaction servers holding Equifax credit information are physically separate
from Intersections web servers and are not available for any services directly
from the Internet. Security controls on such transaction servers include strong
and regularly changed passwords and other measures to prevent unauthorized
access to Equifax credit information. Intersections' Internet connection allows
communication only through a secure application server that cannot be bypassed
by any third party to communicate directly with Equifax.
b. Intersections' Internet connection is protected with
XXXX.xxx (or its successor)-certified firewall(s) that are configured and
managed to adhere to industry best practices.
c. If IDs and passwords are being used: strong password
policies must be in place (minimum length of 6 characters in a combination of
alpha and numeric characters, frequent and mandatory password
changes--recommended at least every 90 days and required at least once per
annum); and IDs and pass-words are encrypted when they travel over the
Internet. If digital certificates are used, the certificate authority must be
trusted, the certification process must be sound, and the certification must be
protected by the end user. Intersections shall ensure that IDs or digital
certificates that were fraudulently issued are disabled or inactivated promptly.
In the event that Equifax updates or modifies the Requirements or the
Encryption Standard, Intersections shall modify its procedures, software, or
systems in order to comply with the modified Requirements or Encryption Standard
within sixty (60) days of the date Intersections is given notice of the modified
Requirements or Encryption Standard. Intersections' system shall have adequate
audit trails and detailed reports that allow early detection of fraudulent
access and/or investigation of suspicious activities. In the event of any breach
of security or release by Intersections of Equifax credit information to anyone
other than the Consumer Subject, Intersections must report to Equifax as soon as
possible but no later than one (1) business day after discovery.
7. No Other or Further License
Apart from the Internet consumer delivery authorization through the Web
Site as provided in Section 3 hereof, nothing herein contained shall convey or
transfer, or be construed to convey or transfer, to Intersections or any other
person any license, right, or power to transmit or retransmit Equifax credit
information or any data therein contained via the Internet. Intersections shall
continue to be subject to, without limitation, all of the restrictions of
Sections 1.5(A) and (B) of the Agreement.
8. Additional Intersections Undertakings
a. Intersections shall request the Equifax credit
information from Equifax as prescribed in Sections 1.7 and 1.8 of the Agreement,
or by other means as may be agreed to from time to time by Equifax and
Intersections.
b. Intersections understands and agrees that it shall be
solely responsible for the development, operation, and maintenance of the Web
Site and for all materials that appear therein, including but not limited to:
(i) the technical operation of the Web Site and all related equipment; (ii)
operating the CreditCompare and
3
Credit Monitoring services on the Web Site in conjunction with the use of
Equifax credit information; (iii) the accuracy and appropriateness of materials
posted on or incorporated into the Web Site or provided for use on the Web Site
(excepting only the Equifax credit information in the form provided by Equifax);
(iv) ensuring that all materials posted on or incorporated into the Web Site do
not violate or infringe upon the rights of any third party (including, without
limitation, copyrights, trademarks, service marks, trade secrets, privacy or
other personal or other proprietary rights); and (v) ensuring that materials
posted on or incorporated into the Web Site are not libelous or defamatory and
comply with all applicable laws and regulations.
c. Intersections will diligently comply with all
federal, state and local laws, ordinances, regulations and administrative orders
(collectively "Laws") applicable to the purchase, transmission, possession, use,
sale, and disclosure of Equifax credit information through the Web Site,
including but not limited to, (i) the FCRA and other Laws regulating the
storage, transmission, or use of information in the nature of the Equifax credit
information, or electronic data interchange, and (ii) Laws applicable to the
sale of products and services to consumers through the Internet, including but
not limited to, marketing, advertising, "spamming," consumer protection, and
unfair and deceptive practices Laws.
d. Intersections acknowledges and agrees that Equifax
shall have no liability to Intersections or any third party arising out of the
Internet consumer delivery by Intersections. Intersections understands and
agrees that Consumer Subjects who access the Web Site shall be deemed customers
solely of Intersections for all purposes. Intersections shall be solely
responsible for any claims, actions, liabilities, damages, fines, penalties,
costs and expenses (including reasonable attorneys' fees) of any nature or kind
whatsoever (cumulatively for purposes hereof "Claims") arising out of or
relating to (i) this customer relationship including but not limited to terms of
sale, privacy policy, use of cookies and customer information retention and
uses, or the delivery of Equifax credit information to Consumer Subjects through
the Web Site, including the use by Consumer Subjects of Equifax credit
information or other information on the Web Site; (ii) the operation or content
of the Web Site; (iii) any representation or warranty offered by Intersections
in connection with the delivery of Equifax credit information through the Web
Site; (iv) any non-compliance with any applicable Laws (including without
limitation the FCRA) by Intersections or by Equifax to the extent that Equifax's
noncompliance is directly caused by the acts of Intersections; (v) any breach of
any representation, warranty, duty or covenant of Intersections hereunder; (vi)
all claims by Consumer Subjects and/or any other third parties related to the
delivery of Equifax consumer information through the Web Site; or (vii) all
claims based on intellectual property infringement caused by the acts or
inaction of Intersections in connection with the ownership or operation of the
Web Site.
e. Intersections shall indemnify, defend and hold
Equifax, any Equifax affiliates, and its contractually affiliated credit
reporting agencies harmless from any and all Claims described in Section 8(d)
hereof. In connection with any indemnification described in this Section,
Equifax (i) will give Intersections prompt written notice of the Claim; (ii)
will cooperate with Intersections (at Intersections' expense) in connection with
the defense and settlement of the Claim; and (iii) will permit Intersections to
control the defense and settlement of the Claim, provided that Intersections may
not settle the Claim without Equifax's prior written consent (which will not be
unreasonably withheld). Further, Equifax (at its cost) may participate in the
defense and settlement of the Claim. This provision will survive the termination
or expiration of the Agreement and shall be in addition to the indemnity
provision of Section 6 of the Agreement.
f. Notwithstanding anything to the contrary in this
First Addendum, if the continued distribution of all or any portion of the
Equifax credit information through the Web Site, as contemplated by this First
Addendum, becomes impossible, impractical, or undesirable due to a change in
applicable federal, state or local laws or regulations, the agency enforcement
of such laws or regulations, or actual or threatened litigation, as determined
by Equifax in its reasonable and good faith judgment, Equifax may (i) terminate
the Internet consumer delivery authorized by this First Addendum; (ii) cease to
provide the credit information within, or pertaining to persons residing within,
the affected jurisdiction(s); or (iii) establish new prices which will apply to
the credit information when provided or delivered within, or pertaining to
persons residing within, the affected jurisdiction(s). Prices established under
clause (iii) will be reasonably calculated to cover the costs incurred by
Equifax in complying with the applicable laws or regulations and will become
effective on the date specified by Equifax in written notice, unless
Intersections objects in writing within five (5) days of receipt of such notice,
in which case Equifax may exercise its rights under clauses (i) or (ii) above.
Equifax will provide written notice of its actions as far in advance of the
effective date as is reasonably possible under the circumstances.
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9. RIGHTS TO AUDIT
Equifax may, from time to time, at its discretion and expense, audit
Intersections to assess compliance with the requirements contained in this First
Addendum including, but not limited to, the compliance by Intersections with the
Requirements and the Encryption Standard, and Equifax may suspend Intersections'
ability to access and make available at the Web Site Equifax credit information
in the event of any noncompliance with the requirements of this First Addendum.
10. ADDITIONAL TERMS AND CONDITIONS
The terms and conditions set forth in this First Addendum are in
addition to the terms and conditions contained in the Agreement which are
incorporated herein by reference. Provided that insofar as any of the terms or
conditions of this First Addendum conflict with the terms or conditions of the
Agreement or impose greater or supplementary requirements, duties, or
restrictions, then as to the transactions contemplated by this First Addendum,
the terms and conditions of this First Addendum shall control.
11. COUNTERPARTS; FACSIMILE
This First Addendum may be executed in separate counterparts, each of
which is deemed to be an original and all of which taken together constitute one
and the same agreement. A signed facsimile copy of this First Addendum may serve
as an original and shall constitute a valid and binding execution of this First
Addendum by each of the parties hereto.
12. DESCRIPTIVE HEADINGS
The descriptive headings of this First Addendum are inserted for
convenience of reference only and do not constitute a constituent part of this
First Addendum.
IN WITNESS WHEREOF, Equifax, Intersections and Processor have executed
this First Addendum on the day and year indicated above intending to be bound by
all of the terms and conditions of this First Addendum.
EQUIFAX CREDIT INFORMATION SERVICES, INC. INTERSECTIONS INC.
By:___________________________________ By:_____________________________
Print Name:___________________________ Print Name:_____________________
Title:_______________________________ Title:__________________________
DIGITAL MATRIX SYSTEMS, INC.
By:_____________________________
Print Name:_____________________
Title:__________________________
5
SECOND ADDENDUM TO AGREEMENT - CONSUMER DISCLOSURE SERVICE
This Second Addendum (the "Second Addendum") to that certain Agreement Consumer
Disclosure Service (the "Agreement") among EQUIFAX CREDIT INFORMATION SERVICES,
INC. N/K/A EQUIFAX INFORMATION SERVICES LLC, a Georgia corporation with its
principal place of business at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000
("Equifax"), CREDITCOMM SERVICES, LLC, a Delaware limited liability company with
its principal place of business at 00000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("CreditComm"), INTERSECTIONS INC. a Delaware corporation with its principle
place of business at 00000 Xxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
("Intersections") and DIGITAL MATRIX SYSTEMS, INC. a Texas corporation, with its
principal place of business at 00000 Xxxxxxxx Xxxxx, 0xx xxxxx, Xxxxxxx, Xxxxx
00000 ("Processor"), is entered into as of November 27, 2001 (the "Effective
Date")
WHEREAS, Equifax, CreditComm and Processor entered into the Agreement effective
April 7, 1997, regulating the provision, access to and use of certain Equifax
Credit Information and the resale of that information in the form of
"CreditCompare" and "Credit Monitoring" Services to Consumer Subjects, all on
the terms and conditions set forth therein; and
WHEREAS, the parties later entered into a First Addendum to the Agreement, dated
March 30, 2001, permitting CreditComm and Processor to access and use Equifax
Credit Information and resell that information in the form of "CreditCompare"
and "Credit Monitoring" Services to Consumer Subjects in electronic format via
the Internet, all on the terms and conditions set forth therein; and
WHEREAS, CreditComm is a wholly-owned subsidiary of Intersections, Inc., and its
product and service offerings include, in addition to CreditCompare and Credit
Monitoring Service, additional credit reports and profiles, credit monitoring
products and other related products which it sells under various names (these
products collectively referred to herein as "Intersections Products")
WHEREAS, Equifax Consumer Services Inc., an affiliate of Equifax, CreditComm and
Intersections, have entered into a certain Marketing, Operational and
Cooperative Services Agreement, dated November 27, 2001 (the "Commercial
Agreement"), pursuant to which Intersections and Equifax Consumer Services Inc.
agree to cooperate on a number of commercial projects including the transition
by Intersections of all of its credit monitoring or other products to use
Equifax Credit Information as the exclusive credit information incorporated in
such services; and
WHEREAS, the parties desire to further amend, modify and supplement the
Agreement, as amended by the First Addendum thereto; and
WHEREAS, capitalized forms used but not defined herein shall have the respective
meanings ascribed thereto in the Agreement, as amended by the First Addendum
thereto;
NOW THEREFORE, for good and valuable consideration the receipt of which is
hereby acknowledged, the parties now agree as follows:
1. EXCLUSIVITY.
1.1. For all purposes of the Agreement as further modified by this Second
Addendum, as used herein, "Intersections" shall mean and include CreditComm
Services, LLC, Intersections Inc., or Processor unless otherwise specified
or unless the context otherwise requires.
1.2. Subject only to Section 5.3, Intersections shall use Equifax Credit
Information as the sole component of all of its existing and future
one-bureau Intersections Products that are credit monitoring products
("Intersections Monitoring Products") products that require credit
information. In addition, Intersections shall utilize Equifax Credit
Information as one of the two bureaus used in any of its dual bureau
Intersections Monitoring Products, and as one of the three bureaus used in
any tri-bureau Intersections Monitoring Products requiring credit
information unless an Intersections client makes a specific request not to
include Equifax.
1.2.1. Intersections shall use its best efforts to transition all of
its existing one and dual bureau Intersections Monitoring
Products to use Equifax Credit Information as its underlying
component, not later than one hundred and eighty (180) days after
the Effective Date. Intersections will, on a monthly basis,
report to Equifax or its representative the number of its
customers who have been converted to Equifax and the number still
to be converted.
1.2.2. Equifax will cooperate with Intersections in its transition
efforts including providing such reasonable assistance that
Intersections may request (subject to any legal, or contractual
obligations restraining Equifax's actions).
1.2.3. To facilitate Intersections transition as required by this
Second Addendum, Equifax at no expense to Intersections, shall
provide to Intersections one CMS file for three consecutive
months as required, for each Member who as of the first day of
each such month had purchased an Intersections Monitoring
Product.
1.3. Notwithstanding subclause (ii) of paragraph 4(b) of the First
Addendum, Intersections shall during the Term of this Agreement and any
extensions thereof use Equifax Secure Inc.'s elDverifier(TM) Authentication
Service as its exclusive online authentication for all Websites maintained
by it for the purpose of selling Intersections Products.
2. SERVICES.
2.1. Intersections shall use the Equifax Credit Information as a component
of the Intersections Products only for sale directly to Consumer
Subjects.
2.2. Intersection shall use the Full Flat File received as part of the
Equifax Credit Information only to calculate the changes to Members
credit information for purposes of reporting the same as part of an
Intersections Monitoring Product.
Intersections shall not separately sell or provide the Full Flat File
to the Consumer Subject or any third party.
3. PRICING. The prices applicable to the Equifax Credit Information and
Services provided hereunder shall be inclusive of Safe Scan and shall be as
follows:
Credit Report Pull $ ** per pull
Quarterly or monthly update pull $ ** per Member per pull
---------
** This information is confidential and has been omitted and separately filed
with the Securities and Exchange Commission.
3.1. Subsequent to the transition described in Section 1.2 the monthly
minimum of $100,000 in xxxxxxxx shall continue to apply throughout the
Term of this Agreement. If at anytime, Intersections fails to meet such
minimum for a thirty-day (30) period Equifax may change such pricing
for all future purchases to its then current pricing based on volume.
4. DEFINITIONS. The following definitions shall apply:
4.1. "WebSite" as defined in Section 2(e) of the First Addendum shall
include any website owned and operated by Equifax or any of its
Affiliates and shall include a site operated jointly by
Intersections and Equifax or any one of its Affiliates.
5. TERM AND TERMINATION.
5.1. Term and Renewal. The term of this Agreement shall be five (5) years
from the Effective Date of this Second Addendum (the "Term"). This Agreement
shall renew for consecutive two (2) year terms unless, written notice of
nonrenewal is given by either party at least twelve (12) months prior to the
effective date of the renewal.
5.2. Termination Due to Termination of Commercial Agreement. Notwithstanding
section 5.1 above, and subject to section 5.4 below, this Agreement shall
automatically terminate twenty four (24) months after the date of
termination or expiration of the Commercial Agreement for any reason;
provided, however, that in the event that Intersections terminates the
Commercial Agreement due to the material breach or default of Equifax, this
Agreement shall terminate the later of (i) twenty four (24) months after the
termination of the Commercial Agreement or (ii) five years after the
Effective Date.
5.3. Change of Control of Intersections. Notwithstanding any provision of
this Agreement to the contrary, this Agreement shall automatically terminate
thirty (30) days after termination of the Commercial Agreement by Equifax
pursuant to Section 21.4.4 thereof (referencing Section 3.8 of a certain
Stockholders Agreement and certain Restricted Purchasers).
5.3 Termination of Exclusivity. Notwithstanding the exclusivity requirement
of Section 1 of this Second Addendum, in the event that (i) either Party
gives notice of nonrenewal pursuant to Section 5.1, or (ii) Section 5.2
becomes operable due to the termination or expiration of the Commercial
Agreement, Intersections, may, at its discretion cease purchasing Equifax
Credit Information for new enrollees of Intersections Products (excluding
any such Services being provided to any Equifax-affiliated company) no
sooner than six (6) months prior to the anticipated end of the Term of this
Agreement.
5.4 Termination Due to Breach. If, at any time, Intersections is (i)
delinquent in the payment of any charges due Equifax pursuant to this
Agreement and remains delinquent for more than thirty (30) days after notice
from Equifax, or (ii) is in violation of any of the material terms of this
Agreement and remains in violation for more than ten (10) days after notice
from Equifax of such violation, then Equifax may, at its election,
discontinue providing Services to Intersections and terminate this Agreement
immediately by giving written notice to Intersections.
5.5 Continued Effect. In the event of termination of this Agreement for any
reason, the provisions of this Agreement shall remain in full force and
effect as to all Equifax Credit Information which Intersections has
requested or received from Equifax prior to the date of termination.
6. CROSS DEFAULT. Intersections acknowledges and agrees that a material default
under this Agreement that remains uncured after giving effect to any
available notice and remedy periods shall be a default under the Commercial
Agreement.
7. EFFECT. Capitalized terms used herein and not defined herein shall have the
meanings given to them in the Agreement. This Second Addendum amends and
supercedes terms of the Agreement and the First Addendum that conflict with
it and the terms of this Second Addendum shall be given precedence. Unless
changed herein, all terms and conditions of the Agreement and the First
Amendment shall remain in full effect.
IN WITNESS WHEREOF, the parties hereto have duly executed this agreement as of
the date first written above.
EQUIFAX INFORMATION SERVICES CREDITCOMM SERVICES LLC
LLC ("Equifax") ("CreditComm")
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Title:_______________________ Title:_______________________
INTRSECTIONS INC. ("Intersections") DIGITAL MATRIX SYSTEMS,
INC ("Processor")
By:__________________________ By:__________________________
Name:________________________ Name:________________________
Title:_______________________ Title:_______________________
