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EXHIBIT 10.6
INTUIT MORTGAGE MARKETSPACE AGREEMENT
This MORTGAGE MARKETSPACE AGREEMENT (the "Agreement") is entered into as of
February 13, 1998, (the "Effective Date") by and between INTUIT LENDER SERVICES,
INC., a Delaware corporation with its principal place of business at 0000 Xxxxxx
Xxxxxx, Xxxxxxxx Xxxx, XX 00000 ("Intuit"), and ALLIED MORTGAGE CAPITAL
CORPORATION, a Texas corporation with its principal place of business at 00000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 ("Lender").
Recitals
A. Intuit is in the business of providing access to certain online
services, particularly in the area of financial services, through
various computer software programs, and is in the process of developing
websites and related software programs designed to assist prospective
borrowers in qualifying and applying for residential mortgage loans
through the website currently referred to as the "Intuit Mortgage
Marketspace" (or "Marketspace"); and
B. Lender is in the business of providing residential mortgage loans and
ancillary products and services to consumers; and
C. Intuit desires to offer to lenders and consumers the Intuit Mortgage
Marketspace online services, through which customers may pre-qualify
and/or apply for residential mortgage loans or other products offered by
Lender, and Lender wishes to make its residential mortgage loan services
and other products available to consumers through the Intuit Mortgage
Marketspace.
NOW, THEREFORE, in consideration of the premises and the respective
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. LICENSES
1.1 Marketspace License. Intuit hereby grants to Lender, on the terms and
conditions set forth in this Agreement, the non-exclusive right and
license in the United States to participate in the Intuit Mortgage
Marketspace (the "Marketspace") for the Term, as defined in Section 7 of
this Agreement.
1.2 Trademark License. Each party shall grant the other party a license to
use certain of its Trademarks during the term of this Agreement as set
forth in the Trademark Terms Schedule, which is attached hereto as
Exhibit A and incorporated herein by reference. Lender shall use the
Intuit Marks in accordance with the Trademark Guidelines attached below
with Exhibit A and incorporated herein by reference.
1.3 Website License. In the event that Lender posts content to any of
Intuit's websites, including the Marketspace, Lender agrees to adhere to
the terms of the Website Terms Schedule, which is attached hereto as
Exhibit B and incorporated herein by reference.
2. INTUIT'S OBLIGATIONS
2.1 Creation of Intuit Mortgage Marketspace. The creation of the Marketspace
will enable consumers, including Intuit's customers, Lender's customers
and others with access to a personal computer and the World Wide Web,
through an interactive computerized loan origination system (CLO) and
other means, to gain access to the Intuit-hosted website, which will
contain general information relating to mortgages and mortgage-related
products for purposes of facilitating the consumer's selection of,
pre-qualification and/or application for a particular mortgage loan. The
Marketspace will also offer consumers general research and education
regarding mortgage loans.
2.2 Marketspace Services. In offering the Marketspace, Intuit will provide
the following services, in addition to any other services that may be
described elsewhere in this Agreement:
(a) Marketing Support. Using marketing materials to be created and
supplied by Lender, Intuit shall facilitate the creation of and publish
on the Marketspace up to three (3) marketing web pages advertising
Lender and the Lender Products, as defined in Section 3.3. Intuit will
facilitate the creation of these web pages by providing a template and
referring Lender to a third-party web production agency to actually
produce the
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web pages, at Lender's discretion. Lender shall not be obligated to use
the services of such agency and may choose its own production agency at
its discretion. The creation of such web pages will be at Intuit's
expense, except that if Lender chooses its own web production agency,
such cost will be the sole responsibility of Lender and Intuit will not
be responsible for any such fees. Lender will also have the option to
purchase advertising in selected areas of the Marketspace, at Intuit's
discretion and at prices to be determined by Intuit. Intuit and Lender
will cooperate with each other to develop joint promotions, press
releases, lead generation programs and advertisements, as and when
deemed by the parties to be mutually beneficial. Lender shall be solely
responsible for the content of any advertising published on the
Marketspace and shall indemnify Intuit for any liability relating to
such advertising in accordance with the provisions of the Website Terms
Schedule.
(b) Information Gathering Services. Intuit shall collect information
from its Marketspace customers to facilitate the sale of the Lender
Products, as defined below. In addition, Intuit or Technology Provider
may contract with one or more third party vendors (each, a "Vendor") to
validate certain collected customer data and/or obtain additional
customer data through the use of third party information services (e.g.,
credit reporting, online appraisal, or credit scoring services). The
Vendors will work either independently or in collaboration with Intuit
and may contract with either Intuit and/or Technology Provider. Each
Vendor will be chosen in consultation with Lender. Either Lender,
Intuit, or the consumer will be responsible for such fees associated
with Vendor service, as determined on a case by case basis.
(c) Maintenance, Management and Transfer of Information Through
Clearinghouse Network. Intuit will contract with an affiliated
technology provider ("Technology Provider"), who will collaborate with
Intuit to set up and maintain automated processes to provide mortgage
loan product and pricing information to the Clearinghouse Network, as
defined below. Lender shall be responsible for updating the information
provided to the Clearinghouse Network and the Marketspace, as more fully
described in Section 3.1, to ensure that at all times the Marketspace
has the most up-to-date information available.
(d) Pre-qualification and Application Services. Intuit will pre-qualify
prospective applicants and take applications for mortgage loans online.
Pre-qualifications and applications will be delivered to Lenders in one
of the following three forms: (i) Pre-qualifications; (ii) Initial
Applications; and (iii) Full Applications. (As of the date of this
Agreement, Release 1.0 of the Mortgage Marketspace software permits only
the pre-qualifying of prospective borrowers. It is anticipated that
future releases will include the ability for consumers to make loan
applications.)
(i) A Pre-qualification consists of borrower contact information
and loan selection information supplied to Lender after borrower
has pre-qualified for and selected a mortgage loan on the
Marketspace. Lender will be responsible for following up with
the customer to take additional information required to
constitute a loan application under Lender's usual loan
application guidelines.
(ii) An Initial Application consists of an abbreviated
application for a specific mortgage loan product, after the
borrower has pre-qualified for and selected a mortgage loan
product on the Marketspace, accompanied by payment of an
application, credit report, and/or appraisal fee to Lender, as
specified by Lender. The Initial Application will contain at
least the fields of data requested on the Xxxxxx Xxx streamline
loan application (which consists of 30-40 fields) but will
contain less information than a completed FNMA/FHLMC Form 1003
application, and Lender will be solely responsible for
collecting the remaining fields of data to constitute a complete
loan application under Lender's usual loan application
guidelines.
(iii) A Full Application consists of a completed FNMA/FHLMC Form
1003 application for a specific mortgage loan product, after the
customer has pre-qualified for and selected a mortgage loan
product on the Marketspace, accompanied by payment of an
application, credit report, and/or appraisal fee to Lender, as
specified by Lender.
All three services will be initiated on the Marketspace and information
related thereto will be transmitted to Lender through the Clearinghouse
Network.
(e) Transaction Processing Services. Intuit will make available to
Lender transaction processing services for collection of customer credit
card or similar payment information, and the implementation of other
payment procedures, to facilitate the application for and sale of Lender
Products.
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(f) Mortgage Counseling. Intuit will provide mortgage counseling and
information services to prospective borrowers via help screens, payment
calculators, comparative product descriptions, demonstrations of product
costs and similar information. Intuit will establish a customer service
call center for handling inquiries from prospective borrowers about the
home financing process or the products available in the Mortgage
Marketspace.
(g) Operation of Computerized Loan Origination System. Intuit will
establish and display a computerized loan origination (CLO) system
enabling prospective borrowers to learn about a variety of loan products
available from various lenders. The CLO will display, at a minimum, the
loan size, loan-to-value ratio, payment options, APR, and interest rate.
The information displayed in the CLO for Lender's products shall be
updated through the Clearinghouse Network as often as Lender's product
offerings are updated by Lender.
(h) Site Operations. Intuit shall provide site statistics and analysis
to Lender on a monthly basis, or more frequently as technology and time
permit, in the form of Intuit's standard reports. Such reports shall
include, but not be limited to, the total number of customers for Lender
Products in all three categories (Prequalification, Initial Application
and Full Application), and the total number of customers for all lenders
using the Marketspace (in the aggregate) for all categories. It is
Intuit's intent to develop a process for registering loan applicants in
the Clearinghouse Network to prevent multiple applications for the same
loan from any individual.
(i) Customer Service. Intuit shall also establish a telephone number and
e-mail address for the Marketspace to enable Intuit to handle agreed
upon customer service functions. Intuit will support a customer service
center with adequate customer service representatives ("CSR's") to
handle all phone calls and/or emails which are routed to Intuit through
an 800-number, email, or from lenders. Initially this center will be in
Fredericksburg, Virginia and will be open from 9 am - 8 pm ET, Monday -
Friday. Intuit will add more hours as necessitated by the volume of
phone calls and emails. Initially, Intuit will provide the following
services: (i) answer questions regarding the Marketspace common area
content and functionality, including navigation of the transaction
process and referral to Marketspace site information; (ii) provide a
general overview about Lender including restating Lender company
information available on the Marketspace, excluding Lender Products
information; (iii) provide problem resolution with Marketspace common
area content and functionality; (iv) if a prospective borrower requests
loan product advice or recommendations, provide the prospective borrower
with the telephone number of the lender's customer service center, or,
if no specific lender is mentioned, (a) forward the inquiry on a
non-discriminatory, rotational basis to all lenders, or (b) provide a
list of all lenders; (v) collect customer feedback on the Marketspace;
(vi) record customer contact information; and (vii) collect payment
information to facilitate the customer's online mortgage transaction.
Intuit will not answer inquiries regarding mortgage loan closings or
provide mortgage descriptions, explanations, advice, recommendations or
otherwise transact mortgages with customers; callers inquiring about
such matters will be directed to contact lenders' online information or
lenders' customer service centers.
(j) Additional Services. It is anticipated that in future releases of
the Marketspace, if such processes can be automated, Intuit will work
with Technology Provider to add to the Clearinghouse Network the
functionality to order appraisals, verifications of employment and prior
mortgages, order flood certifications, loan documents and other
documentation relevant to the prospective borrower's credit application,
and perform additional loan origination and processing services on
behalf of Lender.
(k) Site Development. Intuit will provide Lender with several
Marketspace site prototypes over the course of the Marketspace release
2.0 development period (the date of this Agreement through the end of
March 1998) to gather feedback and input from Lender on product
improvement. Intuit will continue to provide site prototypes to Lender
for review and feedback for future releases. However, Intuit will have
sole editorial and development control over the Marketspace and future
releases.
(l) Regulatory Compliance. Intuit will comply with all applicable
regulatory requirements of the United States or any state with respect
to its services to be provided under this Agreement. Intuit shall
maintain any and all government approvals, licenses or authorizations
required by the laws of the United States or any state to engage in the
activities described in the Agreement.
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3. LENDER'S OBLIGATIONS
3.1 Marketspace Participation. In tandem with Intuit's development of the
Marketspace, Intuit intends to enter into an agreement with Technology
Provider to make available a clearinghouse network (the "Clearinghouse
Network") which a lender must join in order for Intuit to provide the
Pre-qualifications, Initial Applications and Full Applications
which are initiated on the Marketspace and transmitted to Lender through
the Clearinghouse Network.
3.2 Technology Provider License and Requirements. Intuit intends to contract
with Technology Provider to have Technology Provider license aspects of
the Clearinghouse Network to the lenders in order to provide the
intended functionality of the Marketspace. Under such arrangement, the
lenders participating in Marketspace will be required to connect to the
Clearinghouse Network and execute Technology Provider's standard
clearinghouse license agreement ("License'). The License requires, among
other things, (i) installing the Technology Provider's back-office
software at Lender's facility; (ii) transmitting product and pricing
information to Technology Provider as frequently as necessary in order
to ensure that up-to-date information is posted on the Marketspace at
all times; (iii) providing Technology Provider with a copy of Lender's
product guidelines and closing costs that correspond with the Lender
Products; (iv) upload into the Clearinghouse Network a status report of
all Pre-qualifications and Applications at the end of each business day,
or more frequently, if possible, and such status report shall be the
most detailed status report available through the Technology Provider;
and (v) download all Pre-qualifications and/or Applications from the
Clearinghouse Network as frequently as necessary to promptly respond to
customers, but at a minimum download of every thirty (30) minutes during
Lender's hours of operation.
3.3 Lender's Products or Services. Lender shall provide via the Marketspace
detailed product and pricing information for the mortgage loan products
and services ("Lender Products") listed on Exhibit C to this Agreement.
The mortgage loan products listed on Exhibit C are the minimum number of
loan products required to be offered by Lender on the Marketspace as of
the date the Marketspace is accessible to consumers. The loan products
listed on Exhibit C may be changed or updated by Lender from time to
time through the Clearinghouse Network.
3.4 Other Lender Obligations. As a participant in the Marketspace, Lender
shall provide the following services, in addition to any other services
that may be described elsewhere in this Agreement:
(a) Create and submit up to three (3) web pages to be published
on the Marketspace. Intuit will supply a template for these web
pages, but the content is solely the responsibility of Lender.
(b) Facilitate and support the generation of accurate, real-time
rate information, as well as specific information about all
costs (e.g., closing costs, processing fees) that consumer may
be asked to bear in the course of obtaining a particular Lender
Product.
(c) Support the upload and download of rate, product and pricing
and consumer information to and from the Clearinghouse Network,
as set forth in Section 3.2.
(d) Provide a unique toll-free telephone number and e-mail
address for customer inquiries and equip a reasonable number of
customer service representatives with Internet e-mail access and
access to customer information being transmitted from the
Clearinghouse Network.
(e) Cooperate with Intuit and Technology Provider in
establishing effective customer communication transfer
procedures and follow-up mechanism, as referred to in the
implementation guideline that has been provided to Lender and
may be periodically updated by Intuit and respond to Marketspace
customers within 24 hours if the communication is on a weekday
or on Monday if the communication is on the weekend.
(f) Track all Pre-qualifications and Applications routed to
Lender through Intuit, Technology Provider or Lender's unique
Marketspace toll-free number, e-mail address or any Lender
branches. Lender will report such information to Intuit on a
monthly basis. In addition, Lender agrees to use commercially
reasonable efforts to track and report to Intuit all
Pre-qualifications and Applications which originate on Intuit's
Marketspace but which are transmitted to Lender directly by the
borrower either through Lender's branches, e-mail or toll-free
numbers.
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(g) Promptly review for accuracy and completeness all information, site
screens and processing and analytical mechanisms submitted to it for
review by Intuit, as they relate to Lender Products and services and
promptly report back any necessary corrections and/or modifications to
the appropriate party, according to the review and approval procedures
set forth below in Trademark Terms.
(h) Comply with all applicable regulatory requirements with respect to
Lender Products on the Marketspace, including, without limitation,
federal laws and regulations, such as the Truth-in-Lending Act, Real
Estate Settlement Procedures Act, Equal Credit Opportunity Act, all
state laws and regulations, and all other required disclosures, notices
and forms. Any disclosures required by law or regulation will be made by
Lender in Lender's regular course of business or through the
Clearinghouse Network. If such disclosures are made through the
Clearinghouse Network in future releases, such disclosures will need to
be uploaded into the Clearinghouse Network before they will be available
to consumers on the Marketspace.
(i) Lender shall maintain at all times any and all necessary government
approvals, licenses and authorizations to offer Lender Products.
(j) Use best efforts to commit that Lender will not undercut pricing
provided to Marketspace customers if the customer has first
Pre-qualified with Lender on the Marketspace and subsequently completes
the mortgage loan application directly with Lender (through Lender's
telemarketing operations, web site, branches or other means).
(k) Provide pricing and services to the Marketspace that are at least as
competitive as the pricing and services provided for Lender Products in
other multi-lender channels or on the Internet, and in any event such
pricing shall not be in excess of the rates published in Lender's rate
sheets.
4. FEES FOR PARTICIPATION IN MARKETSPACE
Federal and State Law. The fee structure set forth in Exhibit D reflects
the intent of the parties but is subject to change, by mutual agreement
of the parties, to comply with applicable United States federal and
state laws and regulations.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Representations and Warranties of Both Parties. Intuit and Lender each
represents and warrants that: as follows:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation with full
corporate power and authority to transact any and all business
contemplated by this Agreement and possesses all requisite authority,
power, and material licenses, permits and franchises to conduct its
business and to execute, deliver and comply with its obligations under
the terms of this Agreement and it has taken all necessary action to
authorize its execution, delivery and performance of this Agreement;
(b) the execution and delivery of this Agreement and the performance of
its obligations hereunder will not (i) conflict with or violate (A) its
Certificate of Incorporation or By-laws, or (B) any provision of any law
or regulation or any decree, demand or order to which it is subject, or
(ii) conflict with or result in a breach of or constitute a default (or
an event which, with notice or lapse of time, or both, would constitute
a default) under any of the terms, conditions or provisions of any
agreement or instrument to which it is a party or by which it is bound
or any order or decree applicable to it or result in the creation or
imposition of any lien on any of its assets or property;
(c) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of or compliance by it with this Agreement, or if
required, such approval has been obtained prior to the date of this
Agreement;
(d) there is no claim, action, suit, proceeding or investigation
pending or, to the best of its knowledge, threatened against it which,
either in any one instance or in the aggregate, may result in any
material adverse change in the business, operations, financial
condition, properties or assets of it, or in any material impairment of
the right or ability of it to carry on its business substantially as now
conducted, or in any material liability on the part of it, or which
would draw into question the validity of this Agreement or any of the
other instruments, documents or agreements entered into by it in
connection with this Agreement, or of any action
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taken or to be taken in connection with the obligations of it
contemplated therein, or which would be likely to impair materially the
ability of it to perform under the terms of this Agreement;
(e) this Agreement, assuming due authorization, execution and delivery
hereof by the other party, and all the obligations of it hereunder,
constitute the valid and binding obligations of it, enforceable against
it in accordance with the terms hereof, except as such enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws affecting the enforcement of creditors' rights in
general and by general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law.
5.2 Representations and Warranties of Lender. Lender represents and warrants
as follows:
(a) Compliance With Laws. Lender has complied and will continue to
comply with all applicable federal and state laws and regulations in its
business operations.
(b) Ability to Perform. Lender is solvent and it has the financial
resources necessary to perform its obligations under this Agreement,
including, without limitation, its obligations to pay Intuit's fees in
accordance with this Agreement and to fulfill its indemnification
obligations hereunder.
(c) Licenses and Consents. Lender has obtained all necessary or required
governmental licenses and consents to the transactions contemplated by
this Agreement.
5.3 Representations and Warranties of Intuit. Intuit represents and warrants
as follows:
(a) Licenses and Consents. Intuit, in connection with performance of its
duties under this agreement, has obtained or will obtain all reasonably
necessary or required governmental licenses and consents requisite for
the transactions contemplated by this Agreement prior to offering
pre-qualification loan origination services in a particular state. No
consent, approval, authorization or order of any court or governmental
agency or body is required for the execution, delivery and performance
by Intuit of or compliance by Intuit with this Agreement, or if
required, such approval has been obtained prior to the date of this
Agreement.
(b) Ownership of Marketspace. Intuit is the sole owner or licensee of
all right, title and interest in and to the Intuit Mortgage Marketspace.
5.4 Covenants.
(a) Compliance with Laws. Lender and Intuit covenant to each other that
they will comply with all applicable federal and state laws and
regulations in performing their respective obligations under this
Agreement.
(b) Continuing Obligations of Lender. Lender shall cooperate with Intuit
in the performance of this Agreement until the termination hereof.
Lender shall not take any action or refrain from taking any action which
would jeopardize or compromise the performance of the Marketspace as
contemplated herein or which would hinder Intuit in the performance of
its services to lenders or consumers. Lender shall promptly forward to
Intuit all notices, claims, letters, documents and other information
received by Lender which are relevant to the performance of this
Agreement. Lender shall provide Intuit with all information and
documentation for Lender Products which are necessary or relevant to the
performance of the transactions contemplated by this Agreement and to
the performance of Intuit's obligations under this Agreement.
(c) Lender's Books and Records. Lender shall make and retain all
material books and records pertaining to services received from Intuit,
including without limitation, records and reports on Pre-qualifications,
Initial Applications and Full Applications that are initiated through
the Marketspace and any other services provided by Intuit, available for
inspection at Lender's offices upon five (5) days' prior notice by
Intuit.
(d) Further Assurances. At any time, and from time to time after the
execution of this Agreement, upon the reasonable request of a party
hereto, and at the expense of the requesting party, the other party
shall do, execute, acknowledge and deliver, and shall cause to be done,
executed, acknowledged and delivered, all such further acts, deeds,
assignments, transfers, conveyances, powers of attorney and assurances
as may be reasonably required in order to enable the parties to perform
their respective obligations hereunder and carry out the terms of this
Agreement.
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6. LIMITATION OF LIABILITY; INDEMNIFICATION; REMEDIES; DAMAGES
6.1 Indemnification for Actions Taken in Good Faith. Neither Intuit nor any
directors, officers, employees or agents of Intuit (collectively,
"Intuit Indemnified Parties") shall be liable to Lender, any directors,
officers, employees or agents of Lender (collectively, "Lender
Indemnified Parties"), or any third party for, and Lender shall
indemnify the Intuit Indemnified Parties and hold each of them harmless
from and against, any action taken by the Intuit Indemnified Parties, or
for their refraining from taking any action, in good faith reliance upon
information provided by Lender to Intuit or to any third party for
delivery to Intuit pursuant to this Agreement; provided, however, that
this provision shall not protect any Intuit Indemnified Party against,
and Lender shall not be obligated to indemnify or hold harmless any
Intuit Indemnified Party from or against, any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of or failure to perform Intuit's
obligations hereunder.
6.2 General Indemnification by Intuit. Intuit shall indemnify the Lender
Indemnified Parties and hold each of them harmless from and against any
and all claims, losses, damage, penalties, fines, forfeitures,
reasonable legal fees and expenses and related costs, expenses of
litigation, judgments, and any other costs, fees and expenses (each, a
"Liability") to the extent that such Liability was caused by or resulted
from an Intuit breach of any of it's representations, warranties,
covenants and agreements contained in this Agreement or by Intuit's
willful misfeasance, bad faith or negligence in the performance of or
failure to perform as provided in this Agreement.
6.3 General Indemnification by Lender. Lender shall indemnify the Intuit
Indemnified Parties and hold each of them harmless from and against any
and all Liabilities that were caused by or resulted from a breach of any
of Lender's representations, warranties, covenants and agreements
contained in this Agreement or by the willful misfeasance, bad faith or
negligence in the performance of or failure to perform as provided in
this Agreement.
6.4 Notice of Claims. Each party shall promptly notify the other in writing
of any and all litigation and claims known to such party made against it
or the other party in connection with this Agreement.
6.5 Trademark Indemnification. All indemnification issues related to
trademark infringement and indemnification therefor are set forth in
Section 7 of the Trademark Terms Schedule attached hereto as Exhibit A.
6.6 Remedies. In the event that either party shall be in default of its
obligations hereunder, the other party may proceed to protect and
enforce its rights by a suit in equity, action at law or other
appropriate proceeding, whether for the specific performance of any
obligation contained herein or for an injunction against the violation
of any of the terms and provisions hereof, or in aid or exercise of any
power granted hereby or by law and such party may exercise any other
right or remedy available to it under applicable law.
6.7 Consequential Damages. Limitation of Liability. NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, NEITHER PARTY SHALL HAVE ANY
LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF
USE, LOSS OF DATA, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES ARISING FROM SUCH PARTY'S PERFORMANCE OR LACK OF
PERFORMANCE HEREUNDER EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. INTUIT'S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT,
REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AGGREGATE
AMOUNT OF MONEY PAID TO INTUIT BY LENDER DURING THE THEN CURRENT TERM.
7. TERM AND TERMINATION
7.1 Initial Term. This Agreement shall remain in effect until the end of two
(2) years from the Effective Date (the "Initial Term").
7.2 Term. Upon expiration of the Initial Term, unless terminated as provided
in Section 7.3, this Agreement shall automatically renew for additional
periods of one (1) year each. The Initial Term, or such renewal periods,
shall be referred to herein as the "Term."
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7.3 Termination at End of Period. This Agreement may be terminated by either
party after the end of the Initial Term by providing written notice of
termination at least ninety (90) days prior to the desired termination
date.
7.4 Termination upon Default. The breach by either party of a material term
or condition of this Agreement shall constitute an event of default
("Event of Default"). If such Event of Default is not cured by the
defaulting party within thirty (30) days after written notification of
the defaulting party describing the Event of Default, then the
non-defaulting party shall be entitled, at its sole election, to
terminate this Agreement.
7.5 Termination by Reason of Bankruptcy. In the event of the occurrence of
any of the following events, this Agreement shall be terminated
immediately:
(a) the commencement of any bankruptcy, insolvency, reorganization,
dissolution, liquidation of debt, receivership or conservatorship
proceeding or other similar proceeding under federal or state
bankruptcy, debtors relief, bank regulatory or other law by or against
either party; or
(b) the appointment of a receiver, conservator, trustee or similar
officer to take charge of, a substantial part of the property of either
party.
7.6 Termination by Intuit. This Agreement may be terminated by Intuit
immediately upon providing notice to Lender if Intuit discovers that
regulatory and/or legal changes prohibit the establishment of the
relationship between Intuit and Lender for operation of the Marketspace
as contemplated in this Agreement.
7.7 Payments. Upon any termination pursuant to this Section 7, the Lender
shall have no right to a refund of any amounts paid to Intuit, except
that if Intuit terminates this Agreement under Section 7.6, Intuit shall
refund any prepaid Participation Fee for the then current term on a
pro-rata basis. Such refund shall be the sole remedy for termination
under Section 7.6.
7.8 Survival of Certain Obligation. Expiration or earlier termination of
this Agreement for any reason shall not terminate the indemnification
obligations described in Section 6 hereof which shall be deemed
continuing obligations of the parties.
7.9 Consequences of Termination. Upon termination of this Agreement for any
reason, each party will promptly return to the other party, and will not
take or use, all items of any nature that belong to the other party and
all records (in any form, format, or medium) containing or relating to
the Confidential Information as defined below, of the other party. All
consequences for termination which relate to trademark usage are set
forth in Section 5 of the Trademark Terms Schedule. Additional
consequences for termination of the Website are set forth in Section 4
of the Website Terms Schedule.
7.10 Survival of Lender's Obligations. Lender's obligation to pay
pre-qualification or loan origination fees to Intuit shall continue
after expiration or earlier termination of this Agreement with respect
to any Pre-qualification, Initial Application or Full Application
transmitted to Lender by Intuit prior to the expiration or termination
date.
8. RECORDS, REPORTS and AUDITS
8.1 Inspection and Audits. Lender shall make and maintain until the
expiration of twenty five (25) months, unless a longer time period is
required by law or regulation, after the last payment under this
Agreement is due, (i) complete books, records and accounts regarding all
Marketspace customers and their Pre-qualification and/or Application for
Lender Products; and (ii) a calculation of the payments due to Intuit
hereunder. Intuit shall have the right to have an independent certified
public accountant of its choice, not more than once each year, examine
such books, records and accounts at a mutually acceptable time, as set
forth in Section 5.4(c) during Lender's normal business hours to verify
the accuracy of all Lender payments made to Intuit under this Agreement.
The right of inspection and audit shall only extend so far as may be
necessary to ensure compliance by Lender with the terms of the
Agreement.
8.2 Examination. If any such examination discloses any shortfall in payment
to Intuit of less than five percent (5%), then such examination and
audit shall be at Intuit's sole expense, but if any such examination
discloses any shortfall in payment to Intuit of five percent (5%) or
more for any quarter, Lender agrees to immediately remit payment to
Intuit for the full amount of any disclosed shortfalls and for all
reasonable expenses for such
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examination as determined in good faith by Intuit provided a statement
for the expenses of the examination is presented to Lender at the
completion of the examination.
8.3 Payments and Reports. Within thirty (30) days of the end of each month
during the Term of this Agreement, Lender shall provide Intuit with a
report, in the form requested by Intuit, specifying at a minimum, the
total number of Pre-Qualifications, Initial Applications, Full
Applications and actual closings of any Marketspace originated loans
during the preceding calendar month. In conjunction with any such
statement, Lender shall remit to Intuit all payments determined to be
due as a result of such reported information.
9. CONFIDENTIALITY
9.1 Confidential Information. "Confidential Information" of each party
refers to: (i) the prototypes, beta versions, advance releases, any
source code, and any related documentation or technical or design
information related to the Marketspace; (ii) the business or technical
information of Intuit or Lender, respectively, including but not limited
to any information relating to product plans, designs, costs, product
prices and names, finances, marketing plans, business opportunities,
personnel, research, development or know-how; (iii) any other
information designated as "confidential" or "proprietary" or which,
under the circumstances taken as a whole, would reasonably be deemed to
be confidential; and (iv) the terms and conditions of this Agreement.
9.2 Exclusions of Confidential Information. "Confidential Information" will
not include information that: (i) is or becomes generally known or
available by publication, commercial use or otherwise through no fault
of the receiving party; (ii) is known to the receiving party at the time
of disclosure without violation of any confidentiality restriction and
without any restriction on the receiving party's further use or
disclosure; or (iii) is documented as having been independently
developed by the receiving party.
9.3 Use and Disclosure Restrictions. Each party will during the term of this
Agreement and for a period of two (2) years after termination or
expiration of this Agreement refrain from using the other party's
Confidential Information except as contemplated herein, and from
disclosing such Confidential Information to any third party except to
employees as is reasonably required in connection with the exercise of
its rights and obligations under this Agreement (and only subject to
binding use and disclosure restrictions at least as protective as those
set forth herein executed in writing by such employees). However, either
party may disclose Confidential Information of the other party: (i)
pursuant to the order or requirement of a court, administrative agency,
or other governmental body, provided that the disclosing party gives
reasonable notice to the other party in time to permit the other party
to contest such order or requirement; and (ii) on a confidential basis
to legal or financial advisors.
10. MISCELLANEOUS
10.1 Notices. Any written notice required or permitted to be given to the
parties hereunder shall be addressed as follows:
If to Intuit: Intuit Lender Services, Inc.
0000 Xxxxxx Xxx.
Xxxxxxxx Xxxx, XX 00000
Attn: Mortgage Marketspace Product Manager
with a copy to: Attn: General Counsel
If to Lender: Allied Mortgage Capital Corporation
00000 Xxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Attn: Legal Department
All written notices shall be delivered in person or shall be sent by
registered or certified mail, return receipt requested, and shall be
deemed effective, three days after the same is mailed as provided above
with postage prepaid. Notice sent by any other method shall be effective
only upon actual receipt.
10.2 Assignment; Contracting. Neither party may assign its rights or
obligations hereunder, by operation of law or otherwise, without the
express written consent of the other, except that (i) either party may
assign any of its
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obligations or rights, in whole or in part, to any parent, affiliate or
subsidiary of such party, and (ii) the acquisition of all or
substantially all of the voting securities of a party by merger or
otherwise, shall not constitute an assignment of its rights or
obligations hereunder. Any attempted assignment in violation of the
foregoing will be void. Subject to the foregoing, this Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
10.3 Waiver. No term or provision hereof will be deemed waived, and no
variation of terms or provisions hereof shall be deemed consented to,
unless such waiver or consent shall be in writing and signed by the
party against whom such waiver or consent is sought to be enforced. Any
delay, waiver or omission by Intuit or Lender to exercise any right or
power arising from any breach or default of the other party in any of
the terms, provisions or covenants of this Agreement shall not be
construed to be a waiver by Intuit or Lender of any subsequent breach or
default of the same or other terms, provisions or covenants on the part
of either party.
10.4 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of California without respect to its conflicts
of law principles.
10.5 Entire Agreement This Agreement constitutes the entire agreement between
the parties hereto relating to the subject matter hereof, except where
expressly noted herein, and all prior negotiations, agreements and
understandings, whether oral or written, are superseded or canceled
hereby.
10.6 Modification This Agreement may not be amended or modified except in a
written document signed by both parties.
10.7 Severability, If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, this Agreement shall be construed as
if not containing that provision, and the rest of the Agreement shall
remain in full force and effect, and the rights and obligations of the
parties hereto shall be construed and enforced accordingly.
10.8 Technology Provider License. Simultaneously with the execution of this
Agreement, Lender shall execute and deliver to Intuit the Technology
Provider License Agreement.
10.9 Independent Contractor. Intuit, in performance of this Agreement, is
acting as an independent contractor and is not the partner joint
venturer or agent of Lender.
10.10 Headings. The headings appearing at the beginning of the several
sections contained herein have been inserted for identification and
reference purposes and shall not be used to determine the construction
or interpretation of this Agreement.
10.11 Execution in Counterparts. This Agreement maybe executed in counterpart
copies, all of which when taken together shall be deemed to constitute
one and the same original instrument.
10.12 Agreement Nonexclusive. Lender and Intuit each shall have the right to
enter into agreements similar to this Agreement with other lenders or
computer software providers without the consent of the other.
10.13 Force Majeure. Neither party shall be liable for failure to perform any
of its obligations under this Agreement except the obligation to pay
money, during any period in which such performance is delayed by (a)
war, civil commotion and riots, fires, flood, strikes, or work stoppage;
(b) requirements or acts of any governmental authority or agency or
subdivision thereof; or (c) acts of God; provided, however, that the
non-performing party shall notify the other promptly of the delay and
shall use its best efforts to resume performance as soon as reasonably
possible.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be signed
and delivered by its duly authorized officer.
INTUIT LENDER SERVICES, INC. LENDER
By: /s/ XXXX XXXXX By: /s/ XXXXX XXXXX
--------------------------------- -------------------------------------
Name: Xxxx Xxxxx Name: Xxxxx Xxxxx
------------------------------- -----------------------------------
Title: President, ILSI Title: President
------------------------------ ----------------------------------
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LIST OF EXHIBITS
A. Trademark Terms Schedule
B. Website Terms Schedule
C. Lender's List of Mortgage Products
D. Pricing
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