CONSORTIUM MEMBERSHIP AGREEMENT
This Consortium Membership Agreement ("AGREEMENT") is made between HNC
SOFTWARE INC. with its principal place of business at 0000 Xxxxxxxxxxx Xxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000-0000 ("HNC") and XxxxXxx.xxx with its
principal place of business at 000 Xxxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx
00000 ("MEMBER"). The provisions of this Agreement shall apply to Member's
provision of data to the HNC Fraud Control Consortium and the use of such
data by HNC in its development of Models (as such term is defined in Section
2 of this Agreement) for use Member and other HNC clients who are members of
the Fraud Control Consortium.
1. FRAUD CONTROL CONSORTIUM
The HNC "FRAUD CONTROL CONSORTIUM" is a cooperative agreement between
numerous credit, debit, and retail card issuers, merchants, processors,
associations, and acquirers from around the world to have HNC act as their
agent and repository for the purpose of collecting data on credit, debit, and
private label (e.g., retail, oil) card transactions and accounts for the
purpose of: identifying fraud trends, fraud reporting, fraud consulting, and
identifying fraudulent behavior. HNC may also use Fraud Control Consortium
data for research to identify new fraud patterns or different kinds of fraud.
2. SOFTWARE LICENSE
Member agrees that joining the Fraud Control Consortium is a condition to
obtaining a license to use predictive models developed by HNC which are based
on Consortium Member Fraud Data (as such term is defined in Section 3 below)
collected by HNC from Member and other members of the Fraud Control Consortium
("MODELS"). Member acknowledges and agrees that Member's license to use the
Models and computer software programs, owned or distributed by HNC shall be
governed by a separate written software license agreement (the "SOFTWARE
LICENSE") which the parties may negotiate and execute subsequent to their
execution of this Agreement. The software license agreement shall govern all
use by Member of the Models and such computer software programs. This
Agreement does not include the grant of any license or any other rights for
such Models and/or computer software programs. The Software License, if
executed by the parties, will supersede and replace this Agreement as of such
agreement's effective date.
3. PROVISION OF CONSORTIUM MEMBER FRAUD DATA
As a member of the Fraud Control Consortium, Member agrees to promptly
provide its known fraud and non-fraud data as described in this Agreement
(the "CONSORTIUM MEMBER FRAUD DATA") every month during the term of this
Agreement. Such Consortium Member Fraud Data as described in this Agreement
will first be provided to HNC within thirty (30) days of the Effective Date.
HNC reserves the right to notify Member of any required modifications or
changes to the format or context of the Consortium Member Fraud Data to be
provided by Member hereunder. Member acknowledges that the Consortium Member
Fraud Data that Member provides to HNC will be incorporated into the Fraud
Control Consortium database on an anonymous basis and Member hereby
expressly agrees that such Consortium Member Fraud Data may be perpetually
used by HNC without charge to develop fraud, risk, and related models,
reports and consulting activities that will be used by HNC and all members of
the Fraud Control Consortium. Member shall encrypt sensitive data using Fraud
Control Consortium encryption specifications as described in the Data
Contribution Specifications (as defined in Section 4 below).
4. SPECIFICATIONS FOR DATA CONTRIBUTED TO FRAUD CONTROL CONSORTIUM
Member will provide to HNC all available and legally applicable fields
contained in the specifications provided to Member by HNC (the "DATA
CONTRIBUTION SPECIFICATIONS") as its regular contribution to the Fraud
Control Consortium. Member acknowledges and agrees that HNC may update such
Data Contribution Specifications from time to time as necessary. HNC agrees
to provide a Member with updates of such Data Contribution Specifications as
soon as they are available for general release to all members of the Fraud
Control Consortium. Member agrees to promptly acknowledge each and every
receipt of such Data Contribution Specifications upon the acknowledgement
form to be provided to Member by HNC with each new Data Contribution
Specification.
5. QUALITY OF DATA CONTRIBUTED TO THE FRAUD CONTROL CONSORTIUM
Member acknowledges that one of the aims of joining the Fraud Control
Consortium is to help members reduce their fraud losses. For that reason,
Member acknowledges and agrees that for the Fraud Control Consortium to
equally benefit all Consortium members, each member must contribute data that
is complete and meets the Data Contribution Specifications. Should HNC find,
while processing Member's Consortium Member Data for inclusion in the Fraud
Control Consortium that Member's Consortium Member Data is incomplete or
contains inaccuracies, then HNC will promptly notify Member and Member will
make every reasonable effort to correct its Consortium Member Fraud Data
contributed and will use diligent efforts to prevent any similar problems
with any future contributions of its Consortium Member Fraud Data.
5. OWNERSHIP
HNC shall own any derived data variables from any such Consortium Member
Fraud Data collected by HNC as part of the Fraud Control Consortium.
6. SPECIFICATIONS FOR DISPLAY OF FRAUD CONTROL CONSORTIUM LOGO
Member agrees to use diligent efforts to display on each customer
merchandise and/or service order form the "Consortium Logo" only in the
manner described in the "Fraud Control Consortium Logo Specifications" to be
provided to Member with the Data Contribution Specifications. Subject to the
limited rights of Member to display the Consortium Logo in accordance with
this Agreement, HNC retains all worldwide right, title, and ownership in and
to the Consortium Logo.
7. TERM AND TERMINATION
7.1 TERM
This Agreement shall commence on its Effective Date and shall remain in
effect until terminated in accordance with this Section 7.
7.2 TERMINATION OF AGREEMENT
Either party may terminate this Agreement at any time by providing the other
party with ninety (90) days' advance written notice. However, HNC may
terminate this Agreement (and Member's membership in the Fraud Control
Consortium) in its sole discretion without notice in the event Member is
unwilling or unable to provide Consortium Fraud Data to HNC in accordance
with the Data Contribution Specifications and Section 5 of this Agreement.
7.3 TERMINATION FOR BREACH
A party may terminate this Agreement if the other party is in material breach
and has not cured the breach within thirty (30) days of written notice
specifying the breach.
7.4 EFFECT OF TERMINATION
Upon termination of this Agreement, Member shall no longer be required to
provide Consortium Member Fraud Data. However, termination of this Agreement
shall not limit either party from pursuing any other remedies available to
it, including injunctive relief. The parties' rights and obligations under
Sections 2, 5, 7.4, 8.1, 8.4, 8.5, and 8.6 shall survive termination of this
Agreement.
8. GENERAL
8.1 NONDISCLOSURE
The parties may provide to one another information that is confidential
("Confidential Information"). Confidential Information shall include, without
limitation, the following: Consortium Member Data, information regarding the
financial and/or business operations of each party, including, but not
limited to, marketing and product plans, ideas, concepts, business plans,
financial condition, employees, inventions, algorithms, decision technology
and/or models, processes, designs, specifications, drawings, samples,
improvements, developments, applications, engineering, manufacturing and
marketing data and plans, software code (object and source), functionality,
security procedures and approaches, know-how, customer names and information,
experimental work, distribution arrangements and trade secrets, and/or ideas.
Confidential Information shall not include (a) Consortium Member Data that
has been processed by HNC and incorporated into the Models; (b) the specific
identification of Member as a member of the Fraud Control Consortium to other
members of the Fraud Control Consortium; and/or information which: (c) is or
becomes a part of the public domain through no act or omission of the
receiving party; (d) was in the receiving party's lawful possession prior to
the disclosure and had not been obtained by the receiving party either
directly or indirectly from the disclosing party; (e) is lawfully disclosed
to the receiving party by a third party without restriction on disclosure;
(f) is independently developed by the receiving party; or (g) is disclosed by
operation of law (provided that the receiving party shall give the disclosing
party prompt written notice of any subpoenas issued to the receiving party
requesting disclosure of such Confidential Information so that the disclosing
party may, at its own expense and with the reasonable cooperation of the
receiving party, seek a protective order with respect to such disclosure).
The parties agree to hold each other's Confidential Information in confidence
during the term of this Agreement and for a period of five years after this
Agreement is terminated.
8.2 PUBLICITY
Subject to the other party's prior written consent as to form and substance
(which shall not be unreasonably withheld), either party may include the
other party's name in its marketing and promotional materials regarding the
Fraud Control Consortium.
8.3 RELATIONSHIP BETWEEN THE PARTIES
HNC is an independent contractor; nothing in this Agreement shall be
construed to create a partnership, joint venture, or agency relationship
between the parties. Each party will be solely responsible for payment of all
compensation owed to its employees, as well as employment related taxes. Each
party will maintain appropriate worker's compensation insurance for its
employees as well as general liability insurance.
8.4 LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE,
DATA, OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, WHETHER IN AN
ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY OR ANY OTHER PERSON HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.5 GOVERNING LAW
This Agreement, and all matters arising out of or relating to this Agreement,
shall be governed by the laws of the State of California, United States of
America.
8.6 LEGAL EXPENSES
If any action or proceeding is brought for the enforcement of this Agreement,
or because of an alleged or actual dispute, breach, default, or
misrepresentation in connection with any of the provisions of this
Agreement, the successful or prevailing party shall be entitled to recover
reasonable attorneys' fees and other costs incurred in such action or
proceeding in addition to any other relief to which it may be entitled.
8.7 NOTICE
All notices, including notices of address change, required to be sent
hereunder shall be in writing and shall be deemed to have been given when
mailed by first class mail to the first address listed at the top of this
first page of this Agreement.
8.8 SEVERABILITY
In the event any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement will remain in full
force.
8.9 WAIVER
The waiver by either party of any default or breach of this Agreement shall
not constitute a waiver of any other or subsequent default or breach. Except
for actions for nonpayment or breach of either party's intellectual property
rights, no action, regardless of form, arising out of this Agreement may be
brought by either party more than two years after the cause of action has
accrued.
8.10 ENTIRE AGREEMENT
This Agreement constitutes the complete agreement between the parties
regarding the subject matter hereof and supersedes all previous and
contemporaneous agreements, proposals, or representations, written or oral,
concerning the subject matter of this Agreement. This Agreement may not be
modified or amended except in a writing signed by a duly authorized
representative of each party.
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE MAY 4, 1999.
MEMBER, BY VIRTUE OF THE SIGNATURE OF ITS AUTHORIZED REPRESENTATIVE
APPEARING BELOW, AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND
FURTHER AGREES TO JOIN THE FRAUD CONTROL CONSORTIUM.
EXECUTED BY MEMBER:
Authorized Signature: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
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Title: E.V.P. Finance/General Counsel
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EXECUTED BY HNC:
Authorized Signature: /s/ X.X. Xxxxxx
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Name: X.X. Xxxxxx
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Title: CFO
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