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EXHIBIT 10.27
INTERNET MARKETING & CO-BRANDED WEB SITE AGREEMENT
This Internet Marketing & Co-branded Web Site Agreement ("Agreement")
is made this 1st day of March, 2000, by and between BuildNet Financial Services,
Inc., a North Carolina Corporation, with its principal place of business located
at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx Xxxxxxxx 00000 ("BuildNet")
and xxxxxxxx.xxx, inc., a Florida corporation, with its principal place of
business located at 0000 X. Xxxxxxxx Xxxxxxx, Xxxxxxx, XX 00000 ("MDC").
RECITALS
WHEREAS, MDC operates a World Wide Web site (the "MDC Site") on the
Internet (currently located at xxx.xxxxxxxx.xxx) through which it sells
residential mortgage services and products and MDC creates, hosts and maintains
Web Sites on a co-branded marketing basis with third party marketers ("MDC
Products"); and
WHEREAS, BuildNet operates various web sites (collectively the
"BuildNet Sites"); and
WHEREAS, BuildNet and MDC wish to establish a version of the MDC Site
(the "Co-Branded Site") through which users of the Co-Branded Site (defined as
customers of residential real estate builders or developers and hereafter known
as "Consumers") would have the opportunity to purchase residential permanent
mortgage products offered by MDC through BuildNet financial.
AGREEMENT
NOW, THEREFORE, MDC and BuildNet agree as follows:
1. LINKING AGREEMENT
1.1. DISPLAY OF LINKS TO CO-BRANDED SITE:
During the term of this Agreement, as hereinafter defined (the
"Term"), BuildNet shall create and display a mortgage channel that will
provide a hyperlink ("Unique Hyperlink") to the Co-Branded Site via
text and/or graphics. A Unique Hyperlink will be placed in a prominent
location within the BuildNet Sites mutually acceptable to the parties.
The Unique Hyperlink will take Consumers from the BuildNet Sites to the
Co-Branded Site using distinct URLs supplied by MDC exclusively for
linking and tracking (the "Supplied URLs"). The Unique Hyperlink to the
Co-branded Site shall be displayed in the area of the BuildNet Sites
that promotes residential mortgage services and products and, if
BuildNet displays or makes accessible to Consumers descriptive
information regarding any of the vendors whose icons are displayed on
the BuildNet Site then BuildNet shall have the right, but not the
obligation, (and subject to MDC's prior written approval of the content
thereof in each instance the foregoing right is to be exercised), to
include similar descriptive information regarding the Co-Branded Site.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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1.2. PROMOTION/MARKETING
BuildNet shall use commercially reasonable efforts to develop
and implement promotions to stimulate transactions, electronic mail
leads and otherwise to support the sales of MDC Products through the
Co-Branded Site. In furtherance thereof, BuildNet shall conduct the
promotional activities described in Exhibit A ( the "Marketing Plan").
Notwithstanding the previous sentence, in the event the Marketing Plan
is not completed before signing this Agreement, it shall be provided to
MDC for its written approval within sixty (60) days of the effective
date hereof; in the event the Marketing Plan is not approved by MDC,
MDC shall give BuildNet thirty (30) days written notice of its
disapproval setting forth in reasonable detail the reasons for such
disapproval (the "MDC Objection"). In the event the Marketing Plan is
not amended by BuildNet in conformity with the MDC Objection, either
party shall have the right to terminate this agreement upon thirty (30)
days written notice of the date of the MDC Objection.
1.3. TERM
The Term of this Agreement shall commence as of the date set
forth above and end on the last day of the twenty-fourth (24th)
calendar month following the month in which the Unique Hyperlink and
the Co-Branded Site becomes active (the "Deployment Date") subject to
renewal as follows: The Term shall automatically be extended for
additional consecutive twelve month (12) renewal periods (each a
"Renewal Term") unless (i) either party provides written notice to the
other party at least thirty (30) days prior to expiration of the Term,
or any renewal thereof, of its desire not to renew or (ii) at MDC's
sole discretion if BuildNet fails to meet such performance criteria as
set forth in Sections 1.3(a) and 1.3(b) herein so long as BuildNet's
failure to meet said performance criteria as further described in
Section 1.3(c) was not caused by a default of this Agreement by MDC.
Any reference herein to the "Term" shall include each Renewal Term.
BuildNet shall place the Unique Hyperlink on the BuildNet Sites so that
the Deployment Date occurs promptly but in any event no later than five
(5) business days from the date in which MDC notifies BuildNet of the
availability of a fully functional Co-Branded Site. This Agreement may
be terminated upon mutual agreement of the parties or upon a material
breach by either party not cured within the time set forth in Section
6.13. Notwithstanding termination of this Agreement by MDC for reasons
other than for breach of contract, BuildNet shall be entitled to
compensation at the rates provided herein for all transactions, as
hereinafter defined, in process.
a. During the first twelve months from the Deployment
Date (the "First Year"), BuildNet shall enlist a
minimum of [*] builders to offer the MDC Products
through the Co-Branded Site to Consumers. In
addition, MDC shall receive a minimum of [*]
during the First Year through the Co-Branded Site.
For purposes of this Agreement, the term [*].
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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b. During the thirteenth (13th) through the
twenty-fourth (24th) month from the Deployment Date
(the "Second Year"), BuildNet shall enlist a minimum
of [*] builders to offer the MDC Products through the
Co-Branded Site to Consumers. In addition, MDC shall
receive a minimum of [*] during the Second Year
through the Co-Branded Site.
c. MDC recognizes that the commitments made in sections
1.3(a) and 1.3(b), above are contingent upon not only
BuildNet's performance under this Agreement, but also
upon MDC's delivery of basic fulfillment products and
services including, but not limited to customer
services, web site accessibility, and competitive
products and pricing.
d. Should this Agreement be terminated, MDC agrees that
it shall continue to host Consumer branded web sites
powered by MDC's system for a minimum of 90 days or
until BuildNet or another provider of similar hosting
capabilities can assume MDC's duties under this
Agreement. BuildNet shall have, after any
termination, the sole discretion to select another
provider of services similar to that of MDC for any
Customer entered into hereunder. Upon implementation
of such a provider, MDC's obligations to any Customer
shall cease other than for outstanding loan and
application commitments. MDC shall provide reasonable
assistance in transitioning Customers to the new
provider.
1.4. EXCLUSIVITY
BuildNet shall have the exclusive right to market, advertise
and promote MDC's residential first lien mortgage products to Consumers
on an exclusive basis, and exclusively display the Unique Hyperlinks
with regard to any Co-Branded Site developed by MDC for this purpose,
and for the term hereof will not provide links from the BuildNet Sites
to any other web sites for the purposes of offering residential first
lien mortgages. Notwithstanding the foregoing, BuildNet may market,
promote and advertise General Electric's mortgage products and services
to anyone including homebuilders.
a. Except as to existing clients of MDC as set forth on
Exhibit B, BuildNet shall have the exclusive right to
market, advertise and promote the MDC Products to
Homebuilders, and, accordingly, for the term hereof,
BuildNet will not market, advertise, promote or offer
residential mortgage products of any mortgage
lenders, other than those of MDC, to Homebuilders.
Notwithstanding the foregoing, MDC clients listed on
Exhibit B, who [*] in BuildNet after execution of
this Agreement will automatically be removed from
Exhibit B. Homebuilder is a natural person or legal
entity licensed by all applicable federal, state and
local government authority and whose principal
business is to construct new homes for sale to the
public in the United States.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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b. In the event that a Homebuilder desires to purchase
from MDC any residential mortgage services offered by
MDC including but not limited to (i) mortgage banking
services such as originating, processing,
underwriting, closing, funding and selling loans, or
(ii) the development, marketing, sale and operating
of Web Sites for consumers to obtain residential
loans or (iii) the development, marketing, sale and
operation of private label web sites or (iv) net
branch operations, point of sale kiosks and rapid
response centers or any other internet technology
related services, which services are hereinafter
collectively referred to as "Other Services" and in
the event such Other Services are not available
through (i) the MDC Products or (ii) a program
jointly developed by BuildNet and MDC that in
BuildNet's reasonable sole discretion meets the
requirements of such Homebuilder, MDC may offer such
services to any such Homebuilder notwithstanding the
exclusivity provisions set forth above.
c. For the term of this Agreement, MDC shall not enter
into any agreements with any entity that is a
competitor of BuildNet, as hereinafter defined (the
"BuildNet Competitors"), to provide the MDC Products.
BuildNet shall provide to MDC an initial list, which
may be amended from time to time, of all BuildNet
Competitors and such list shall be set forth on
Exhibit C and made a part of this Agreement.
Notwithstanding the foregoing, MDC shall use its best
efforts to identify potential MDC clients, not on the
list in Exhibit C, who may also be competitors of
BuildNet and seek BuildNet approval before entering
into an agreement with said client to provide the MDC
Products offered hereunder. For purposes of this
Agreement, the term "BuildNet Competitor" shall mean
(i) a Homebuilder that offers mortgage services to
its clients, other than those excluded pursuant to
Section 1.4(a) and Exhibit B, or (ii) an entity which
offers back office administrative or transaction
processing software for Homebuilders with the same or
similar functionality as the proprietary software of
BuildNet which includes, but is not limited to,
purchase ordering, invoicing, scheduling and job
costing in connection with the construction of homes,
or (iii) any person or entity, which is not a
Homebuilder, which over the previous three fiscal
years has obtained more than 25% of its total
mortgage revenues through leads generated from
Homebuilders as demonstrated by audited or if
unavailable, unaudited financial statements.
d. Notwithstanding anything contained herein to the
contrary, nothing contained herein shall limit the
right of MDC to enter into any agreement to provide
any services or products, including the services and
products offered hereunder to any person or entity,
which is not a Homebuilder, which over the previous
three fiscal years has obtained no more than 25% of
its total mortgage revenues through leads generated
from Homebuilders as demonstrated by audited or if
unavailable, unaudited financial statements. In
addition, MDC shall have the right to enter into an
agreement with any party including a BuildNet
Competitor relating solely to the sale of debt or
equity securities of MDC.
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2. CO-BRANDED WEB SITE & UNIQUE HYPERLINK
2.1. DELIVERY OF UNIQUE HYPERLINK
MDC shall furnish to BuildNet prior to the Deployment Date a
Unique Hyperlink. If MDC subsequently modifies the Unique Hyperlink, it
shall furnish a representation in the same format which BuildNet shall
substitute for the prior version within ten (10) days after receipt.
During this 10 day notice period, a functional Co-Branded Web Site
shall be available at both the old URL Unique Hyperlink and the new
replacement URL address.
2.2. MDC PERMISSIONS
MDC hereby grants to BuildNet the nonexclusive,
nontransferable, nonassignable (except as provided in Section 6.1)
right during the Term to use (i.e., to copy, transmit, distribute,
display and perform both privately and publicly) the Unique Hyperlink,
the MDC name, the MDC Site name and other related textual and graphic
material that are provided by MDC to BuildNet for the express purpose
of inclusion on the BuildNet Sites from time to time (collectively, the
"MDC Materials") solely on the BuildNet Sites for the specific purposes
authorized in Section 1.1 and Section 1.2. MDC also authorizes BuildNet
to refer in BuildNet's advertising and promotion to the fact that the
MDC services are accessible through the BuildNet Site, provided that
any such statement (a) does not include any trademarks, service marks,
design marks, symbols and/or other indicia or origin of MDC other than
MDC's name and/or the MDC Site name in a non-distinctive typeface
(i.e., not the typeface used in the logo design of any MDC xxxx); (b)
does not state, suggest or imply by the wording or prominence of such
statement, or otherwise, that MDC sponsors, authorizes and/or is the
source or origin of the BuildNet Sites and (c) does not disparage MDC,
its products, services or affiliates. All use of MDC Materials
hereunder shall inure to the benefit of MDC and shall not create any
rights, title or interest in them for BuildNet. No other use of MDC's
names, trademarks, services marks, design marks, symbols and/or other
indicia of origin or other designations confusingly similar to any of
the foregoing may be made by BuildNet for any purpose without the prior
written approval of MDC. As between MDC and BuildNet, with the
exception for all BuildNet Materials as defined herein, MDC owns and
shall continue to own, exclusively, all right, title and interest
(including, without limitation, all rights provided under the law of
copyright and trademark) in and to the MDC Materials, Co-Branded Site
and all MDC names, trademarks, service marks, design marks, symbols
and/or indicia of origin therein throughout the world and in
perpetuity, subject to the permissions granted in this Agreement
2.3. MDC MORTGAGE PRODUCTS AND PRICING
MDC shall have the right to decide which residential mortgage
products it will offer to Consumers, and has sole discretion to approve
or reject any credit applications it receives, and to determine the
criteria on which these decisions will be based. MDC shall set the
pricing and lender fees of the MDC Products on the Co-Branded Site
equal to
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those prices as found on the MDC Site with the exception that MDC shall
add up to [*] to points for all products offered. Such pricing may be
adjusted in writing by mutual agreement of the parties from time to
time. Notwithstanding the forgoing, MDC agrees to meet and confer with
BuildNet as may be reasonably necessary regarding mortgage product
selection.
2.4. MDC CO-BRANDED SITE DEVELOPMENT, HOSTING AND MAINTENANCE
MDC shall create, host and maintain the Co-Branded Site. The
parties agree that the information and data contained on the Co-Branded
pages shall be physically located on a web server owned and/or operated
by MDC. The Co-Branded Site shall contain the legend "BuildNet
Financial powered by Xxxxxxxx.Xxx" in a clear an conspicuous manner on
the each respective home page. MDC agrees to host and maintain the
Co-Branded Site pursuant to the standards set forth in Exhibit D. MDC
and BuildNet will confer and mutually agree on Co-Branded Site design,
provided that such pages shall be consistent with the MDC
functionality. MDC shall incorporate some or all of BuildNet Materials
(as defined in Section 2.8), as well as any other text, graphics,
animation, scripts or other materials deemed necessary or desirable by
both parties within the frame of the Co-Branded Site. BuildNet shall
control and make all final decisions regarding the frame, its layout,
displays and linkages. No links or link exchanges will be placed by MDC
on the BuildNet Co-Branded site without prior approval of BuildNet.
BuildNet may request that MDC modify the design of the Co-Branded
pages. MDC shall respond to such reasonable requests of BuildNet and
provide time frames in which such requests will be completed. MDC shall
not unreasonably reject any such request by BuildNet to modify the
design of the Co-Branded pages. MDC agrees that part of this design
will include site navigation that will allow users to return to the
BuildNet Sites through a text or logo link provided by BuildNet (the
"Return Icon"). MDC shall customize the Co-Branded Site such that the
home page of the Co-Branded Site will allow the Consumer to identify
the builder that referred them to the site. Upon selection of the
appropriate builder by the Consumer, the Consumer will then be
forwarded to a customized home page for the builder. Each builder shall
have the ability to access the loan application status of each Consumer
it referred to the Site. BuildNet shall have the ability to obtain loan
application status for every Consumer that applies through the
Co-Branded Site. In addition, all customized builder home pages shall
be accessible via their own unique URL address. Any additional
customization work for builder home pages or the Co-Branded Site, as
per a written work order signed by BuildNet, shall be billed to
BuildNet at a rate of [*].
2.5. SITE IDENTIFICATION AND WORKFLOW
The home page of the Co-Branded Site shall reference BuildNet
as the provider of the site, as opposed to MDC. During the application
process, Consumers will be notified on the site and in writing that the
lender for the Co-Branded Site is First Mortgage Network, a trade name
of MDC and the entity that has been selected to provide application,
processing, underwriting and closing services for BuildNet Consumers.
Customer service and loan processing for loan applications originated
on the Co-Branded Site shall be conducted under the name of First
Mortgage Network. Phone calls fielded
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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from the toll free number featured on the Co-Branded Site shall be
answered in the name of "BuildNet Financial," or in the name of the
sponsor of the Co-Branded Site. Final closing documents, including but
not limited to the Note and Deed of Trust, shall identify the lender as
"xxxxxxxx.xxx, inc. dba First Mortgage Network." MDC reserves the right
to modify the Co-Branded Site identification and workflow described in
this paragraph as may be required from time to time by state or federal
licensing and regulatory requirements.
2.6. MAINTENANCE
Information maintained on the Co-branded pages shall be
updated on a regular basis to reflect the changes in functionality
exhibited on the MDC Site. The Co-Branded Site shall contain
functionality to originate prime credit loans (defined as conforming to
either Fannie Xxxxxxx MAC, underwriting guidelines or jumbo or
portfolio loans to non-agency guidelines), sub-prime credit loans
(defined as not conforming to Xxxxxx Mae or Federal Home Loan Mortgage
Corporation underwriting guidelines) and home equity lines of credit.
MDC shall update and maintain the Co-Branded Site on a regular basis.
2.7. CUSTOMER SERVICE & TECHNICAL SUPPORT INQUIRIES.
All customer service or technical support inquiries shall be
directed to an email address and phone numbers specified by MDC, and
MDC shall respond to all associated first-line customer service and
technical support inquiries from Consumers. MDC shall provide such
technical support at service levels in accordance with its standard
policies and procedures, as set forth in Exhibit E, but shall provide
support not less than an amount that is commercially reasonable and
customary in the industry or. Both parties will assign content project
managers to manage the development and maintenance, which results from
the execution of this Agreement.
2.8. BUILDNET PERMISSIONS
BuildNet hereby grants to MDC, its affiliates and agents the
nonexclusive, nontransferable, nonassignable (except as provided in
Section 6.1) right during the Term to use (i.e., to copy, transmit,
distribute, display and perform both privately and publicly) the Return
Icon, BuildNet's name, the name of the BuildNet Sites (including
xxx.XxxxxxxxXxxxxxxxx.xxx, xxx.XxxxxxxxXxxxxxxxx.xxx and
xxx.XxxxxxxxXxxxxxxxx.xxx), and other related textual and graphic
material that are provided by BuildNet to MDC for the express purpose
of inclusion on the Co-Branded Site from time to time (collectively,
the "BuildNet Materials") solely on the Co-Branded Site for the
specific purposes permitted hereunder. BuildNet also authorizes MDC to
refer in MDC's advertising and promotion to the fact that the
Co-Branded Site is accessible through the BuildNet Site, provided that
any such statement (a) does not include any trademarks, service marks,
design marks, symbols, URL Addresses and/or other indicia of origin of
BuildNet, except as provided in the BuildNet Materials; and (b) does
not disparage BuildNet, its products, services or affiliates. Within
sixty (60) days from the date of this Agreement, MDC shall shall
transfer the domain name registration ownership for the domain names,
xxx.Xxxxxxxxx.xxx and xxx.Xxxxxxxxxxx.xxx to
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BuildNet and such addresses shall then be considered part of the
BuildNet Materials. All use of the BuildNet Materials hereunder shall
inure to the benefit of BuildNet and shall not create any rights, title
or interest in them for MDC. No other use of BuildNet's names,
trademarks, services marks, design marks, symbols and/or other indicia
of origin will be made by MDC for any purpose without the prior written
approval of BuildNet. As between MDC and BuildNet, BuildNet owns and
shall continue to own, exclusively, all right, title and interest
(including, without limitation, all rights provided under the law of
copyright and trademark) in and to the BuildNet Materials and all
names, trademarks, service marks, design marks, URL addresses, symbols
and/or indicia of origin therein throughout the world and in
perpetuity, subject to the permissions granted in this Agreement. MDC
agrees that any use of the BuildNet Materials, by MDC shall be subject
to review and approval in advance by BuildNet. BuildNet shall retain
the right, in its sole discretion, to demand immediate modification,
revision or cessation of the use of BuildNet Materials in the event
that BuildNet determines that the BuildNet Materials are being used
improperly. Without limiting the generality of the foregoing, MDC shall
not use BuildNet Materials in a manner that BuildNet determines to be
inappropriate or unacceptable.
3. FEES
3.1. TRANSACTIONS
The parties believe and have agreed that the annual fair
market value of the BuildNet marketing services to be performed under
this Agreement [*] and further agree, consistent with Section 8 of the
Real Estate Settlement Procedures Act of 1974 as amended ("RESPA"),
that MDC's payments to BuildNet for its marketing services in any
annual period may be less than, but can not exceed, this fair market
value amount. For the performance of the marketing services set forth
herein from the effective Date of the contract through December 31,
2000, BuildNet shall be entitled to a fee of up to [*], which fee will
be paid by MDC in the following manner and at the following rates until
the aggregate fees in any annual period equal the [*] figure; MDC shall
pay BuildNet at the rate [*] . If MDC's payments to BuildNet for its
marketing services do exceed this amount in any annual period, BuildNet
agrees to return any excess to MDC with interest calculated at Prime
within ten (10) days of discovering or being informed that it has
received more than the fair market value amount. MDC shall have
exclusive right in determining whether a mortgage loan meets its
criteria as a conforming, sub prime or second lien home equity line of
credit loan. For purposes of this Agreement, "Prime" shall be defined
as the interest rate, commonly known as the "Prime Rate", set by the
Federal Reserve Bank and which represents the lowest rate a bank will
charge its best large customers for a loan. All fees in this Section
3.1 may be adjusted by mutual agreement in writing between the parties.
a. For future marketing services, beginning on January
1, 2001, both parties shall, within 30 days of
year-end, reassess the fair market value of
BuildNet's marketing services and mutually agree upon
the valuation to be paid by MDC.
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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3.2. CO-BRANDED SITE DEVELOPMENT AND FEE
BuildNet agrees to pay MDC a fee of [*] for the development of
the Co-Branded Site and for performance of its maintenance duties as
set forth herein ("Co-Branded Site Fee"). It is acknowledged by both
parties that BuildNet has paid fifty percent (50%) of the Co-Branded
Site Fee payable and due hereunder. The Co-Branded Site Fee shall cover
the initial five (5) customized builder home pages in addition to the
training of BuildNet personnel to be able to set up additional builders
on the Co-Branded Site. Upon completion of the initial five builder
home pages and the subsequent training of BuildNet personnel, the
balance of the Co-Branded Site Fee shall become due and payable, and it
is agreed to by the parties that BuildNet shall have sole
responsibility of adding additional builders to the Co-Branded Site.
3.3. CO-BRANDED SITE HOSTING FEE
BuildNet agrees that beginning with the thirteenth month
(13th) following the Deployment Date of the Co-Branded Site, it shall
pay MDC a web site hosting fee ("Hosting Fee") in the sum of [*] per
month for the Term hereof.
3.4. AUDITING
Either party shall have the right, at its expense, upon thirty
(30) business days written notice and during the other party's normal
business hours, to inspect and audit the site logs of the Co-Branded
Site or the directly relevant books and records of the other party for
the purpose of verifying the performance, any reports, information or
payments due under this Agreement. Any such audit shall be conducted by
a firm of independent certified public accountants reasonably
acceptable to the other party. In the event of any shortfall in payment
to BuildNet is found which exceeds five percent (5%) of the total due
to BuildNet for the monthly period audited, MDC shall reimburse
BuildNet for the reasonable costs incurred in conducting the audit plus
all amounts then due plus interest at Prime.
3.5. REPORTING AND PAYMENTS
Within fifteen (15) days following the close of each calendar
month during the Term, each party shall pay and the other party shall
receive all amounts due for such previous month and shall submit with
payment a statement providing in reasonable detail the basis for such
payment. BuildNet shall report to MDC, on a regular basis, regarding
the progress of its online advertising campaign and promotional
efforts. Any payment not received when due shall accrue interest from
the date due until the date paid at ten percent (10%) interest per
annum, or if less, the maximum per annum rate permitted by law.
3.6. TRACKING
MDC shall track all visitors to the co-branded sites using the
unique URL associated with each site, as is currently done on all MDC
sites. Additional levels of tracking can be accomplished using "sender
codes", which are also currently in use on all
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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MDC sites. MDC shall cooperate reasonably with BuildNet to identify
feasible, lawful, available alternate means to identify users if the
current methods used for this purpose do not reliably identify and
track the source of consumer traffic to the sites. Notwithstanding the
foregoing, MDC shall separately track and report all electronic mail
leads generated by the BuildNet inquiry forms.
a. Within 30 days of execution of this Agreement, MDC
shall provide for review and approval a detailed
description of the tracking methodology and
technology used under this Section. If deficiencies
are found by BuildNet in the methodology and
technology, MDC shall make reasonable efforts to
correct the deficiencies and shall submit for
BuildNet's review the corrective measures taken.
b. BuildNet shall have the right to periodically review
on 15 days notice MDC's tracking methodology and
technology. This review shall take place no more
frequently than semi-annually or upon reasonable
belief that the tracking technology or methodology is
flawed or not functioning correctly.
c. MDC shall notify BuildNet of any change in the
tracking methodology or technology used under this
Section 15 business days before such change is made.
BuildNet shall have the right of prior approval for
any change that it reasonably believes shall impair
the obligations of tracking under this Section.
4. CONFIDENTIAL INFORMATION
4.1. DEFINITION
As used herein, "Confidential Information" shall mean all oral
or written information, of whatever kind and in whatever form, relating
to past, present or future products, software, research, development,
inventions, processes, techniques, designs or other technical
information and date, and marketing plans (including such information
of third parties that a party hereto is obligated to hold as
confidential), provided that such information has been reasonably
identified as or could be reasonably considered to be proprietary or
confidential, that either party (a) may have received prior to the date
of this Agreement, whether directly from the other or indirectly from
third parties, or (b) may receive hereunder from the other. The terms
of this Agreement shall be deemed Confidential Information.
4.2. OBLIGATION
Each party agrees that, with respect to its receipt of
Confidential Information of the other party it shall:
a. use the same care and discretion to prevent
disclosure of such Confidential Information as it
uses with similar Confidential Information of its own
that it does not desire to disclose but in no even
with less than a reasonable degree of care;
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b. accept such Confidential Information and use such
Confidential Information only for the purposes
permitted hereunder; and c. restrict disclosure of
Confidential Information solely to those of its
employees and agents who have a need to know and are
obligated not to disclose such Confidential
Information to any third parties.
4.3. EXCEPTIONS
The restrictions of Section 4.2 shall not apply to information
that:
a. is or hereafter becomes part of the public domain
through no wrongful act, fault or negligence on the
part of the recipient;
b. the recipient can reasonably demonstrate, is already
in its possession and not subject to an existing
agreement of confidentiality;
c. is received from a third party without restriction
and without breach of this Agreement;
d. was independently developed by the recipient as
evidenced by its records; or
e. recipient is required to disclose pursuant to a valid
order of a court or other governmental body;
provided, however, that the recipient shall first
have given notice to the disclosing party and shall
give the disclosing party a reasonable opportunity of
at least 10 days to interpose an objection or obtain
a protective order requiring that the confidential
Information so disclosed be used only for the
purposes for which the order was issued.
4.4. RETURN
All notes, data, reference manuals, sketches, drawings,
memoranda, electronic media, records in any way incorporating or
reflecting any Confidential Information of the disclosing party and all
proprietary rights therein shall belong exclusivity to such disclosing
party and the recipient agrees to return all copies of such materials
to the disclosing party immediately upon request or upon termination or
expiration of this Agreement.
4.5. CONSUMER CREDIT INFORMATION
MDC hereby agrees that all information, excluding Social
Security Numbers and credit reports, provided by Consumers who access a
xxxxxxxx.xxx web site or similar xxxxxxxx.xxx service either from (i) a
BuildNet owned or operated web site or (ii) a BuildNet software product
shall be the sole and exclusive property of BuildNet (the "BuildNet
Consumer Information"). Without limiting the foregoing, "BuildNet
Consumer Information" shall include both completed applications and
incomplete applications and/or web site hit and use information. MDC
agrees that it shall not use the BuildNet Consumer Information for any
purpose, except as permitted in the limited license granted by this
Section, or disclose such information to any third party. BuildNet
agrees that it shall use the BuildNet Consumer Information only for
purposes that are consistent with the BuildNet Privacy policy, as it
may be amended from time to time in the sole discretion of BuildNet.
BuildNet hereby grants to MDC a limited license to use the BuildNet
Consumer Information for the sole purpose of performing its services
under this Agreement. MDC shall supply BuildNet with the BuildNet
Consumer Information on
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a monthly basis or more frequently as agreed to between the parties.
Both parties agree to comply with all State and Federal laws governing
the confidentiality of consumer credit information and to maintain
confidentiality of this information. It is mutually agreed and
understood under this Agreement that BuildNet is not a lender or
engaged in any way in lending activities, and is solely promoting and
advertising MDC's Products to Consumers. MDC will comply with all
applicable Federal and State laws, including legal requirements for
disclosures, notices and reporting.
5. LIABILITY
5.1. PRODUCT RESPONSIBILITY
MDC and BuildNet acknowledge that neither advocates or
endorses the purchase or the use of any of the products or services
offered by the other through their respective World Wide Web sites or
otherwise, nor do they guaranty the quality, fitness or results of any
such products or their compliance with any law or regulation.
5.2. REPRESENTATIONS AND WARRANTIES OF MDC
MDC represents and warrants that: (a) MDC has the right to
enter into this Agreement and to grant the rights and licenses granted
herein; (b) the Co-Branded Site and the reproduction, distribution,
transmission, public performance and public display of the MDC Material
in connection with the BuildNet Sites do not and will not (i) invade
the right of privacy or publicity of any third person, (ii) contain any
libelous, obscene, indecent or otherwise unlawful material, or (iii)
infringe any patent, copyright or trademark right in any jurisdiction,
or (iv) contravene any other rights of any third person; (c) MDC has
received no notice of such invasion, violation or infringement of
rights; except that the representations and warranties in subsections
(b) and (c) above shall not apply to User Content or Product Content.
Instead, MDC agrees that it shall use commercially reasonable efforts
to monitor and edit such User Content and Product Content and shall use
commercially reasonable efforts to promptly remove any User Content and
Product Content from the Co-Branded Site which fails to conform with
the warranties and representations in subjection (b) above. "User
Content" means content uploaded by parties other than MDC; "Product
Content" means content contained in products sold by parties other than
MDC. MDC shall provide commercially reasonable customer service to
consumers in connection with the BuildNet site, subject to the cure
provisions set forth in Section 6.13.
5.3. REPRESENTATIONS AND WARRANTIES OF BUILDNET
BuildNet represents and warrants that: (a) BuildNet has the
right to enter into this Agreement and to grant the rights and licenses
granted herein; (b) the BuildNet Sites and the reproduction,
distribution, transmission, public performance and public display of
the BuildNet Materials as permitted herein do not and will not (i)
invade the right of privacy or publicity of any third person, (ii)
contain any libelous, obscene, indecent or otherwise unlawful material,
or (iii) infringe any patent, copyright or trademark right in any
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jurisdiction; or (iv) contravene any other rights of any third person;
and (c) BuildNet has received no notice of such invasion, violation or
infringement of rights.
5.4. BREACH OF REPRESENTATION, WARRANTY OR COVENANT
Each party to this Agreement shall defend, indemnify and hold
harmless the other party and each of its officers, directors, employees
and agents (each, an "Indemnitee") against and in respect of any loss,
debt, liability, damage, obligation, claim, demand, judgment or
settlement of any nature or kind, known or unknown, liquidated or
unliquidated, including without limitation all reasonable costs and
expenses incurred (legal, accounting or otherwise) (collectively
"Damages") arising out of, resulting from or based upon any claim,
action or proceeding by any third party alleging facts or circumstances
constituting a breach of the representations and warranties of this
Section 5 made by such indemnifying party (the "Indemnifying Party").
5.5. PROCEDURES FOR INDEMNIFICATION
Whenever a claim shall arise for indemnification under this
Section 5, the relevant Indemnities, as appropriate, shall promptly
notify the Indemnifying Party and request the Indemnifying Party to
defend the same. Failure to so notify the Indemnifying Party shall not
relieve the Indemnifying Party of any liability which the Indemnifying
Party might have, except to the extent that such failure prejudices the
Indemnifying Party's ability to defend such claim. The Indemnifying
Party shall have the right to defend against such liability or
assertion in which event the Indemnifying Party shall give written
notice to the relevant Indemnities of acceptance of the defense of such
claim and the identity of counsel selected by the Indemnifying Party.
Such notice of the relevant Indemnities shall give the Indemnifying
Party full authority to defend, adjust, compromise or settle such
action, suit, proceeding or demand with respect to which such notice
shall have been given, except to the extent that any compromise or
settlement shall affect any rights of any Indemnitee, and which
settlement or compromise shall be subject to the prior approval of the
Indemnitee. With respect to any defense accepted by the Indemnifying
Party, the relevant Indemnities shall be entitled to participate with
the Indemnifying Party in such defense if the action or claim requests
equitable relief or other relief that could affect the rights of the
Indemnity and also shall be entitled to employ separate counsel for
such defense at such Indemnities expense. In the event the Indemnifying
Party does not accept the defense of any indemnified claim as provided
above, the relevant Indemnities shall have the right to employ counsel
for such defense at the expense of the Indemnifying Party. Each party
agrees to cooperate and to cause its employees and agents to cooperate
with then other party in the defense of any such action and the
relevant records of each party shall be available to the other party
with respect to any such defense.
5.6. RISK ALLOCATION
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY
PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR
INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL,
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PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR
PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS
AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF
ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER
THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO
KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
5.7. ACKNOWLEDGEMENT OF NO WARRANTY
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY WARRANTS
THAT THEIR RESPECTIVE WEB SITES OR THE CO-BRANDED SITE WILL PERFORM IN
THE MANNER EXPECTED OR WITHOUT INTERRUPTION, ERROR OR DEFECT OR THAT
ANY REVENUE TO EITHER PARTY WILL RESULT FROM THE ACTIVITIES
CONTEMPLATED BY THIS AGREEMENT. EXCEPT AS EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR WARRANTIES AGAINST INFRINGEMENT OF ANY
INTELLECTUAL PROPERTY RIGHTS NOT SPECIFICALLY ENUMERATED.
5.8. LIMITATION OF LIABILITY
Each party's liability to the other party for any and all
claims and damages incurred by such party relating to or arising out of
the subject matter of this Agreement, whether in contract, tort,
implied warranty, strict liability or other form of action, except for
claims for violations of a party's intellectual property rights, and
any right of indemnity provided herein, shall be limited to the greater
of (x) the amounts paid by MDC to BuildNet pursuant to this Agreement
for the preceding six months or (y) one thousand dollars. BuildNet and
MDC each acknowledge that the provisions of this Agreement were
negotiated to reflect an informed, voluntary allocation between them of
all risks (both known and unknown) associated with the transactions
associated with this Agreement. The warranty disclaimers and
limitations in this Agreement are intended to limit the circumstances
of liability. The remedy limitations, and the limitations of liability,
are separately intended to limit the forms of relief available to the
parties. The provisions of this Section 5.8 shall be enforceable
independent and severable from any other enforceable or unenforceable
provision of this Agreement.
6. MISCELLANEOUS PROVISIONS
6.1. ASSIGNMENT AND CHANGE IN CONTROL
Except as otherwise provided herein, neither MDC nor BuildNet
may assign this Agreement or any of its rights or delegate any of its
duties under this Agreement without prior written consent of the other,
which consent shall not be unreasonably withheld. However, both parties
agree that this Agreement may not be assigned to a competitor of
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the other party. In the event of a Change in Control of either party ,
the other party has the right to terminate this Agreement upon thirty
(30) days' notice. A "CHANGE OF CONTROL" means any: (a) sale of all or
substantially all assets of either party .; (b) merger, reorganization
or consolidation of either party pursuant to which the stockholders or
successor immediately prior to such merger, reorganization or
consolidation: (i) hold less than 50% of the voting power of the
surviving company following the merger, reorganization or
consolidation, or (ii) in the event that the securities of an
affiliated entity are issued to the stockholders in the transaction in
exchange for their shares, hold less than 50% of the voting power of
such affiliated entity.
6.2. COUNTERPARTS
This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original and all of which together shall be
deemed the same Agreement.
6.3. GOVERNING LAW
This Agreement, its interpretation, performance or any breach
thereof, shall be construed in accordance with, and all questions with
respect thereto shall be determined by, internal, substantive laws in
the State of North Carolina and the venue for any lawsuit, action or
arbitration under this Agreement shall be the courts of Wake County,
North Carolina.. If either party employs attorneys to enforce any right
arising out of or relating to this Agreement, the prevailing party
shall be entitled to recover reasonable attorneys' fees, in
arbitration, litigation, or otherwise.
6.4. HEADINGS
Section headings are for convenience only and are not a part
of the Agreement.
6.5. INDEPENDENT CONTRACTORS
MDC and BuildNet are independent contractors under this
Agreement, and nothing herein shall be construed to create a
partnership, joint venture or agency relationship between MDC. Neither
party has the authority to enter into agreements of any kind on behalf
of the other party.
6.6. INTEGRATION
This Agreement contains the entire understanding of the
parties hereto with respect to the transactions and matters
contemplated hereby, supersedes all previous agreements between
BuildNet and MDC concerning the subject matter, and cannot be amended
except by a writing signed by both parties.
6.7. NO RELIANCE
No party hereto has relied on any statement, representation or
promise of any other party or with any other officer, agent, employee
or attorney for the other party in executing this Agreement except as
expressly stated herein.
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6.8. NOTICE
All notices, demands and other communications hereunder shall
be in writing or by written telecommunications, and shall be deemed to
have been duly given when received: (i) if mailed by certified mail,
postage prepaid, return receipt requested, (ii) if delivered by
overnight courier or (iii) sent by confirmed telecommunication to
addressee at the following address:
If to BuildNet:
Xxxxx Xxxxxxx
Chairman
BuildNet Financial Services, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
With copy to:
Xxxx Xxxxxx
President
BuildNet, Inc.
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000
If to MDC:
Mr. Xxxx Xxxxx
Senior Executive Vice President
xxxxxxxx.xxx, inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx X
Xxx Xxxxx, XX 00000
With copy to:
Mr. Xxxxxxx Xxxxxxx
General Counsel
xxxxxxxx.xxx, inc.
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
or such other address as either party may specify by notice given in
writing.
6.9. PRESUMPTIONS
In resolving any dispute or construing any provision
hereunder, there shall be no presumptions made or inferences drawn (i)
because the attorneys for one of the parties drafted the agreement,
(ii) because of the drafting history of the agreement; or (iii) because
of the inclusion of a provision not contained in a prior draft, or the
deletion of a provision contained in a prior draft.
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6.10. SEVERABILITY
In the event any provision of this Agreement shall for any
reason be held to be invalid, illegal or enforceable in any respect,
the remaining provisions shall remain in full force and effect.
6.11. SURVIVAL
The provisions of Section 4 and 5 shall survive termination or
expiration of this Agreement.
6.12. WAIVER
No waiver of any breach or any provision of this Agreement
shall constitute a waiver of any prior, concurrent or subsequent breach
of the same of any other provisions hereof, and no waiver shall be
effective unless made in writing and signed by an authorized
representative of the waiving party.
6.13. RIGHT TO CURE
In the event either party desires to assert any remedies for
breach of this Agreement, the party desiring to assert such remedies
shall give the other party thirty (30) days written notice and an
opportunity to cure within ten (10) business days.
6.14. PUBLICITY
a. Other than the rights granted in this Section,
nothing in this Agreement shall be construed to grant
any right or license to BuildNet in or to any content
or other material supplied by MDC other than the
right to use the content or material in the
marketing, promotion and advertising of the
Co-Branded Site. BuildNet agrees that it will not,
without the prior written consent of MDC in each
instance: (i) use in advertising, publicity, press
release or otherwise the name of MDC, nor any trade
name, trademark, trade device, service xxxx, symbol
or any abbreviation, contraction or simulation
thereof owned by MDC; or (ii) represent, directly or
indirectly, that any product or any service provided
by BuildNet has been approved or endorsed by MDC.
Without in any way limiting the foregoing
restrictions, BuildNet may: (i) disclose the
existence of this Agreement for any purpose required
by law or for the purposes of financial reporting or
disclosure, including, without limitation, any
disclosure or reporting that may be reasonably
required to obtain equity financing; and (ii) list
MDC as a business partner of BuildNet on BuildNet's
internal and external customer lists.
b. Other than the rights granted in this Section or
elsewhere in the Agreement, nothing in this Agreement
shall be construed to grant any right or license to
MDC in or to any content or other material supplied
by BuildNet other than the right to use the content
or material in the marketing, promotion and
advertising of the ABA Site. MDC agrees that it will
not, without the prior
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written consent of BuildNet in each instance: (i) use
in advertising, publicity, press release or otherwise
the name of BuildNet, nor any trade name, trademark,
trade device, service xxxx, symbol or any
abbreviation, contraction or simulation thereof owned
by BuildNet; or (ii) represent, directly or
indirectly, that any product or any service provided
by BuildNet has been approved or endorsed by
BuildNet. Without in any way limiting the foregoing
restrictions, MDC may: (i) disclose the existence of
this Agreement for any purpose required by law or for
the purposes of financial reporting or disclosure,
including, without limitation, any disclosure or
reporting that may be reasonably required to obtain
equity financing; and (ii) list BuildNet as a
business partner of BuildNet on BuildNet's internal
and external customer lists.
IN WITNESS WHEREOF, the parties hereto caused their duly authorized
officers to execute this Agreement as of the date set forth above.
BuildNet Financial Services, Inc.
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Chairman
xxxxxxxx.xxx, inc.
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Executive Vice President
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EXHIBIT A
BuildNet Promotional Activities
In addition to those services as described in Section 1.1,
BuildNet shall, using Trademarks, information and other material
supplied by BuildNet in context of the Co-Branded Site, promote,
market, and advertise the availability of the MDC's Products and
services to Consumers looking to purchase or refinance residential real
estate and to builders looking for residential mortgages for their
customers. BuildNet shall promote the availability of the customized
builder home page on the Co-Branded Site to residential real estate
builders and developers which frequent the BuildNet Sites. BuildNet
shall be responsible for the preparation and dissemination of all
promotional materials utilized to promote MDC's Products as approved by
BuildNet. BuildNet shall use commercially reasonable efforts to attract
Consumers, builders and developers alike. BuildNet shall provide a
detailed budget and marketing plan outlining the commitment of BuildNet
to effectuate a national sales effort to promote the sale of the MDC
Products to Consumers. Such marketing plan shall include, but not be
limited to, the following:
o A marketing strategy overview; and
o Completed marketing materials describing the MDC
Products for distribution to the sales staff; and
o Creation of a sales incentive program for the
BuildNet sales force; and
o Scheduling of trade show exhibits for the year 2000;
and
o Completed builder launch kit for each Co-Branded
Site; and
o BuildNet sales staffing estimates.
BuildNet may enter into agreements with other Internet web sites or
corporate Intranet sites to advertise, market and promote MDC's Products. Such
cooperative marketing arrangements shall be subject to prior review and written
approval of MDC. BuildNet will submit all such marketing agreements to MDC for
approval at least five (5) business days prior to publication or distribution of
such materials. MDC agrees that approval of such marketing agreements shall not
be unreasonably withheld.
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EXHIBIT B
MDC CLIENTS
[*]
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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EXHIBIT C
BUILDNET COMPETITORS
o [*]
Portions of this exhibit marked by [*] have been omitted pursuant to a request
for confidential treatment.
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EXHIBIT D
WEB SITE HOSTING & MAINTENANCE STANDARDS
The following terms, when used in this Exhibit, shall have the following
meanings:
"DOWN TIME" shall mean any time that the Co-Branded Site is not in a Fully
Functional State for any reason or cause other than; (i) the scheduled services
outages set forth below in Section 2(a)(iv)(1) of this EXHIBIT D; and (ii)
causes which are the fault of the builder or BuildNet.
"FULLY FUNCTIONAL STATE" shall mean that the Co-Branded Site is available for
access and use by Consumers.
MDC shall provide to BuildNet the following hosting services described below for
the Co-Branded Site (the "Hosting Services"):
SUMMARY OF SERVICES
MDC shall procure, provide, install and manage MDC owned Windows NT(R)
web server(s) and all other equipment and telecommunications facilities
unless otherwise agreed upon by the parties, on behalf of BuildNet at
the MDC Service Center. This production server will house the
Co-Branded Site. MDC shall maintain sufficient server capacity and
Internet connectivity throughout the Term to accommodate growth in user
numbers and overall traffic levels to the Co-Branded Site. MDC shall
host and operate the Co-Branded Site such that the users experience
access times and time to retrieve full web pages that are substantially
similar to the access times and time to retrieve full web pages by
users visiting other sites hosted by MDC including, without limitation,
xxx.xxxxxxxx.xxx.
1. SERVICE MONITORING & MANAGEMENT
(a) MDC will perform continuous monitoring and management of each
Web Site to optimize availability of service. Included within
the scope of Service Monitoring & Management is the proactive
monitoring of the web servers and all service components of
the MDC's firewall for trouble on a 7 day by 24 hour basis,
and the expedient restoration of components when failures
occur within the time period set forth in "Service Outages"
below. MDC shall maintain redundancy in all key components
such that service outages are less likely to occur due to
individual component failures.
i. Permissible Down Time
1. In any month during the term of this
Agreement, the Web Sites shall be in a Fully
Functional State for no less than
ninety-ninety nine and
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one half percent (99.5%) of the time; and
shall experience no more than one half
percent (.5%) Down Time (the "Permissible
Down Time"). Permissible Down Time shall
include any scheduled maintenance.
2. If, during any given month of this
Agreement, the Web Sites fail to remain in a
Fully Functional State in accordance with
2.i.1, above, then BuildNet shall be
entitled and MDC shall remit to BuildNet the
greater of (i) the monthly hosting fee paid
by BuildNet for Web Site hosting divided by
the number of days in the month or (ii) the
monthly hosting fee broken down to an hourly
basis times the number of hours that the
system was down.
3. If the Web Sites remain down for three
consecutive twenty four (24) hour period or
five total twenty four (24) hour periods
(based upon the total number of hours of
down time) during any given month, then
BuildNet shall be entitled to consider MDC
in breach of its hosting requirements and
may seek termination of the Agreement.
ii. Service Hours
MDC's Service Center is staffed 24 hours a day, 7
days a week, to support BuildNet's needs and make all
notifications to BuildNet required pursuant to this Exhibit E.
Automated monitoring tools alert service personnel of problems
on a 7 day by 24-hour basis.
iii. Service Reliability
MDC protects all mission-critical equipment (e.g.,
routers, hubs, servers) in the MDC Service Center with
Uninterruptable Power Supplies (UPS) which are covered by a
service contract. Sufficient sparing levels are kept on-site
for all key equipment components. In addition, MDC has
implemented redundant servers for all key services, such as
routing, DNS and email gateways.
iv. Service Outages
1. Scheduled
MDC scheduled outages must be notified to
BuildNet at least 24 hours in advance, and
shall last no longer than one hour and shall
be scheduled between the hours of 1:00 a.m.
and 5:00 a.m., Eastern Time). MDC may
request extensions of scheduled down time
above one (1) hour and such approval by
BuildNet may not be unreasonably withheld.
2. Unscheduled
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Unscheduled outages are caused by loss of
connectivity to the Internet, or by failure
of a MDC service. In cases where a
destination is not available, or
unacceptable service is reported, MDC will
attempt to determine the source of the
problem and report its findings to BuildNet.
(b) MDC will monitor "heartbeat" signals of all servers, routers
and leased lines, and HTTP availability of the web server, by
proactive probing at 30-second intervals 24 hours a day using
HP Openview as well as HP ManageX or the equivalent. If a
facility does not respond to a ping-like stimulus, it is
immediately checked again. A second failure will trigger
automatically a page to MDC's Service Center and selected
engineers, as well as generating a log entry. The Service
Center monitors this service 24 hours a day.
(c) When the Customer Service Center receives a "down" signal, or
otherwise has knowledge of a failure in the production server
or the application hardware, MDC personnel will:
i. Confirm (or disconfirm) the outage by a direct check
of the facility;
ii. If confirmed, take such action as may restore the
service in one hour or less, or, if determined to be
a telephone company problem, open a trouble ticket
with the telephone company carrier;
iii. Notify the BuildNet Technical Administrator by
telephone or voicemail according to predefined
procedures that an outage has occurred, providing
such details as may be available, including the MDC
ticket number if appropriate and time of outage;
iv. Work the problems until resolution, escalating to
management or to engineering as required;
v. Notify the BuildNet Technical Administrator of final
resolution, along with any pertinent findings or
action taken, and requests concurrence to close the
ticket.
2. BACK UPS
a. Back-Up Administration provides for both the regular back-up
of standard file systems, and the timely restoral of data from
a BuildNet request due to a site failure.
i. Perform back-ups of file systems housed in the MDC
Service Center at Xxx Xxxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, Xxx Xxxxxx;
ii. Perform weekly full back-ups;
iii. Perform daily incremental back-ups;
iv. Send back-up tapes to secured, off-site storage
facilities with a 30 day rotation of tapes;
v. Retain one back-up tape per month for one year;
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vi. Fulfill restoral requests as directed by BuildNet due
to site failures. Restoral will be performed within
the interval of 2 to 4 hours dependent on the urgency
of the request, and the agreed upon location of the
desired tape.
vii. If the hosting server or location is expected to be
down for more than 24 hours, the MDC will immediately
transfer appropriate back-up data and re-establish
all hosting operations in an appropriately
functioning secondary server or location.
4. SECURITY
a. Monitoring
i. MDC will
1. Limit physical and electronic access to web
servers;
2. Review security notifications and alerts
relevant to the hosting platform (e.g.,
vendor notifications of bugs, attacks,
patches), and apply as appropriate to
maintain the highest level of defense; and
b. Breaches
i. In the event of an attack or threatened or suspected
breach of security against the Co-Branded Site, MDC
will take whatever reasonable steps that are
necessary to halt such action, including taking the
affected Co-Branded Site down. Down time due to
external attacks shall not count against "permissible
down time". MDC will immediately contact BuildNet's
authorized contact to discuss what measure to take.
However, if time is critical, action may be required
before the contact can be reached. MDC's actions will
include:
1. Confirm the threat;
2. Deny access from the source of the attack;
3. Investigate the extent of the damage, if
any;
4. Back-up the affected systems and those
suspected to be affected;
5. Strengthen defenses everywhere, not just the
suspected path that the attacker used;
6. Contact the ISP where the threat or attack
originated and/or law enforcement to work
with MDC's security team;
7. Contact builder and BuildNet to inform them
of the breach;
8. Produce an Incident Report within 24 hours
detailing MDC's findings and distribute the
report to the client(s) affected; and
9. Re-instate the denial of access after a set
time period, but continue to monitor traffic
from that source until risk of further
attacks is deemed to be minimized.
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ii. BuildNet shall have the right to audit MDC security
procedures and actions taken as a result of a breach
of security. Such audit shall include review and
post-mortem analysis of MDC security precautions
taken as a result of the breach and on-site review if
necessary. BuildNet shall bear the costs associated
with any such security audit, except for routine
copying and postage as necessary for MDC to provide
the Incident Report and accompanying data on the
breach to BuildNet.
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EXHIBIT E
CUSTOMER SERVICE STANDARDS
The professionals at xxxxxxxx.xxx firmly believe in making you, our customer,
a top priority. As a valued customer, you have certain rights. Showing our
respect for your rights in all we do, xxxxxxxx.xxx ensures:
At xxxxxxxx.xxx, you can always count on your personal
mortgage consultant for fast, friendly service. You have the
right to receive a prompt response to your inquiry within 4
hours of your initial contact. You can also expect same-day
credit approvals ... simply submit your application to us by
5:00 PM no matter where you are in the country!
You have the right to privacy and confidentiality. When you
complete your loan application, your personal information is
protected using the latest encryption technology.
We respect your time. Provided that you allow us to use one
of our preferred service providers, we can guarantee your
right to close on or before your desired closing date, as
agreed to at the time you applied. Just be sure to return all
required documentation to us in a timely manner.
You have the right to expect that your closing costs will not
exceed those disclosed to you in your Good Faith Estimate,
again, provided that you select one of our preferred service
providers. PLEASE NOTE: THIS does not apply to prepaid
amounts for taxes, insurance, and mortgage insurance.
Should xxxxxxxx.xxx's personal consultants fall to meet any of these
commitments, as outlined above, we will send you a check for $300.00 once you
close with us.
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