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EXHIBIT 10.18
MASTER OUTSOURCED SERVICES AGREEMENT
This Master Outsourced Services Agreement (the "Agreement") is
effective as of the 27 day of January, 2000 (the "Effective Date") and is by and
between xXxxxxx.xxx, Inc., a Delaware corporation having its principal place of
business at 000 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000 ("xXxxxxx.xxx")
and XxxXxxxx.xxx, Inc., a Delaware corporation having its principal place of
business at 0000 Xxxxx Xxxx Xxxx, Xxxxx 0000, Xxxxxxx, XX 00000 ("Client").
WHEREAS, Client conducts credit evaluations of its prospective
customers and arranges financing for customers; and
WHEREAS, xXxxxxx.xxx, among other business activities, offers certain
proprietary business process automation services designed to facilitate the
credit evaluation and financing process in an outsourced environment
("Outsourced Services"); and
WHEREAS, Client desires to retain xXxxxxx.xxx to customize the
Outsourced Services according to protocols provided by Client ("Client's
Business Logic") to process consumer and business credit information provided by
Client or obtained by xXxxxxx.xxx at the request of Client ("Data").
NOW THEREFORE, in consideration of the foregoing, the mutual promises
set forth in this Agreement and for other good and valuable consideration, the
receipt and adequacy of which is acknowledged by all parties, the parties hereby
agree as follows:
1. Obligations of xXxxxxx.xxx. xXxxxxx.xxx will customize its Outsourced
Services according to Client's Business Logic (as set forth in Schedule 1 hereto
and made a part hereof) and will process Data according to Client's Business
Logic and return the results of such processing ("Processed Transactions") to
Client in an online interactive mode. These Outsourced Services will be provided
to Client on a non-exclusive basis.
2. Payment. Client shall pay to xXxxxxx.xxx the fees as set forth in Schedule
2.1 hereto.
3. Term. This Agreement shall continue in effect for an initial term as set
forth in Schedule 3.1 (the "Initial Term") and will automatically renew at the
end of the Initial Term or any extension for additional terms as set forth in
Schedule 3.1 ("Renewal Terms") unless either party tenders written notice of its
intent to terminate within sixty (60) days of the renewal date, or the Agreement
is otherwise terminated.
4. Terms and Conditions. The attached Terms and Conditions are incorporated
herein and made a part hereof.
Executed as of the date set forth above, as a document under seal, by the duly
authorized representatives of the parties hereto.
XXXXXXX.XXX, INC. XXXXXXXX.XXX, INC.
Name: Xxxxx X. Xxxxxxx Name: Xxxx X. XxXxxxxxxx
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Signature: /s/ XXXXX X. XXXXXXX Signature: /s/ XXXX X. XXXXXXXXXX
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Title: VP of Channel Sales Title: Chairman, President and
& Sales Ops, duly authorized Chief Executive Officer,
duly authorized
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MASTER OUTSOURCED SERVICES AGREEMENT
Terms and Conditions
1. Performance of Outsourced Services. xXxxxxx.xxx will use commercially
reasonable efforts to assure that Outsourced Services are generally available
twenty-four (24) hours per day, seven (7) days per week, according to the
Specifications. Client shall be solely and exclusively responsible for the
provision of Client's Business Logic and Data.
2. Taxes and Charges. Client shall reimburse xXxxxxx.xxx within ten (10) days of
receipt of xXxxxxx.xxx's invoice for all taxes or similar assessments related
to this Agreement, other than taxes based on the net income of xXxxxxx.xxx.
3. Pass Through Expenses. Client will reimburse xXxxxxx.xxx for any new or
increased fees, or other charges that directly increase xXxxxxx.xxx's costs in
performing this Agreement, provided that Client may terminate this Agreement on
thirty (30) days written notice if such cost increases are unacceptable to
Client.
4. Termination.
4.1 Either party hereto may terminate this Agreement immediately should the
other party (i) admit in writing its inability to pay its debts generally as
they become due; (ii) make a general assignment for the benefit of creditors;
(iii) institute or consent to bankruptcy proceedings against it; (iv) be
adjudicated as being bankrupt or insolvent; (v) seek or consent to
reorganization under any bankruptcy act; or (vi) have a decree entered against
it by a court of competent jurisdiction appointing a receiver, liquidator,
trustee or assignee in bankruptcy or in insolvency covering all or substantially
all of such party's property or providing for the liquidation of such party's
property or business affairs.
4.2 Should either party commit a material breach of its obligations, the other
party may terminate this Agreement, by thirty (30) days' written notice
describing the basis for such termination unless prior to expiration of such
period the defaulting party cures such default. Client's non-payment of any
invoice shall constitute a material breach.
4.3 Either party may terminate this Agreement for any reason on ninety (90) days
written notice.
4.4 Upon termination by either party, xXxxxxx.xxx shall discontinue any use of
Client's Business Logic and Data (all of which constitute Intellectual Property
of Client) within ten (10) business days following the date of termination.
Except as otherwise provided in this Agreement, within ten (10) business days
following the termination of this Agreement, each of the parties shall return to
the other party all materials belonging to the other party that constitute
Confidential Information and/or Intellectual Property.
4.5 To the extent that rights have accrued thereunder prior to termination, the
provisions of this Agreement relating to payment of any fees, charges or other
amounts owed, payment of any interest thereon, warranties, compliance with law,
and indemnity shall survive any termination or expiration of this Agreement as
well as any other provisions which expressly provide therefor. The provisions of
this Agreement relating to ownership of intellectual property, confidentiality,
and limitation of liability shall survive any termination or expiration of this
Agreement indefinitely.
5. Intellectual Property and Confidentiality.
5.1 Intellectual Property Rights.
(a) For purposes of this Agreement, "Intellectual Property" shall mean (i)
copyrights (including, without limitation, the right to reproduce,
distribute copies of, display and perform the copyrighted work and to
prepare derivative works in any format or media), copyright registrations
and applications, patent rights (including, without limitation,
registrations and applications), trade xxxx and service xxxx rights
(including, without limitation, registrations and applications), trade
names, mask-work rights, trade secrets, moral rights, algorithms, trade
dress, goodwill and other proprietary rights, and all renewals, divisions,
continuations, continuations-in-part, reissues, additions and extensions
thereof, regardless of whether any of such rights arise under the laws of
the United States or any other state, country or jurisdiction; (ii)
intangible legal rights or interests evidenced by or embodied in any idea,
design, concept, process, technology, invention, discovery, enhancement,
improvement or information and data which is not generally known, (including
formulae, procedures, protocols, techniques and results of experimentation
and testing) that is necessary or useful, regardless of patentability, but
including patents, patent applications, trade secrets, and know-how; (iii)
all appurtenances related to, and derivatives of any of the foregoing; (iv)
Client's Business Logic and Data proprietary to Client and any Confidential
Information of Client and (v) the Outsourced Services and any Confidential
Information of xXxxxxx.xxx.
(b) Except as expressly set forth in this Agreement, neither party will
acquire any right, title, or interest in the other's Intellectual Property.
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5.2 Protection of Confidential Information.
(a) Confidential Information. Each party understands and acknowledges that
any data or information, oral or written, treated as confidential that
relates to the other's research, development or business activities,
including any unannounced products and services, other clients, suppliers,
and service providers, business processes and plans, finances, internal
operations, developments, inventions, processes, plans, financial
information, data, revenue, forecasts, projections, methods of compiling,
manipulating, presenting and disseminating Outsourced Services, Client's
Business Logic and Data, or information, access control systems, security
codes, and details of systems and applications which is disclosed or
otherwise made available to the other party and the financial and other
contractual terms of this Agreement (collectively, "Confidential
Information"), represent valuable confidential information that may be
entitled to protection as trade secrets. The parties shall keep
confidential, shall not disclose, and shall protect from unauthorized
disclosure by their employees and agents, Confidential Information and all
copies or physical embodiments thereof in any media in its possession, and
shall limit access to Confidential Information to those who require such
access in connection with this Agreement. Each party shall secure and
protect the Confidential Information and any and all copies and other
physical embodiments thereof in any media in its possession in a manner
consistent with the steps taken to protect its own trade secrets and
Confidential Information, but not less than a reasonable degree of care.
Each party shall take appropriate action with its employees who are
permitted access to the Confidential Information to satisfy its obligations
hereunder.
(b) Exceptions. The confidentiality obligations set forth above shall not
prohibit disclosure of (i) information previously known to the receiving
party without reference to Confidential Information, (ii) information which
is or becomes publicly known through no wrongful act of the receiving
party, (iii) information received from a third party under no
confidentiality obligation with respect to the Confidential Information,
(iv) information required to be disclosed under administrative or court
order or in arbitration or litigation arising out of a this Agreement, or
(vi) information concerning the terms of this Agreement in connection with
debt and capital fund-raising of either party and other transactions to
third parties under confidentiality obligations to either party of this
Agreement.
6. Representations, Warranties and Certain Agreements.
6.1 Y2K Compliance. The following should be considered a Y2K Readiness
Disclosure under the Year 2000 Information and Readiness Disclosure Act.
xXxxxxx.xxx hereby warrants that (i) the proprietary software applications and
tools developed by xXxxxxx.xxx and used in providing the Outsourced Services
(the "Software") will properly perform all date functions, including, but not
limited to, processing the year 2000, leap years, and calculations and formulas
involving dates in more than one century ("Century Compliant"), and (ii) the
Software will not cause an abnormal abort to occur, or generate incorrect values
or invalid outputs, based on management, manipulation or calculation of data
involving dates, including leap days ("Date Compliant") when used with other
components which are Century Compliant and Date Compliant. In the event any
Software is not Century Compliant or Date Compliant, xXxxxxx.xxx shall, to the
extent necessary, promptly repair such Software or replace such Software with
Software of equivalent functionality and performance which meets the foregoing
standards; this shall be Client's sole remedy for breach of these warranties and
for failure of the Outsourced Services to be Century Compliant and Date
Compliant. Client hereby warrants that Client's Business Logic, used by it in
connection with the Outsourced Services, is Century Compliant and Date
Compliant. In the event any of Client's Business Logic is not Century Compliant
or Date Compliant, Client shall, to the extent necessary, promptly repair such
Business Logic or replace such Client's Business Logic with Client's Business
Logic of equivalent functionality and performance which meets the foregoing
standards; this shall be xXxxxxx.xxx's sole remedy for breach of these
warranties and for failure of the Client's Business Logic to be Century
Compliant and Date Compliant.
6.2 Certain Obligations of Client. Client hereby represents, warrants and
covenants that throughout the term of this Agreement, Client shall (i) have the
right to disclose or cause the disclosure of Client's Business Logic and Data to
xXxxxxx.xxx and such disclosure and xXxxxxx.xxx's use thereof pursuant to this
Agreement shall be in compliance with all applicable laws including but not
limited to the federal and state laws pertaining to credit, debt collection,
business practices and consumer protection; (ii) not use the Outsourced Services
on behalf of any third party and only in connection with a credit transaction
involving the Client's customer on whom the information is to be furnished and
involving the extension of credit to, or review or collection of an account of,
the Client's customer; (iii) submit any marketing literature Client creates
pertaining to Outsourced Services to xXxxxxx.xxx for review and approval prior
to publication; (iv) Client shall bear all collection risk (including, without
limitation, credit card fraud and any other type of credit fraud) with respect
to sales of its products; (v) be solely responsible for maintaining complete
backup records of all information relating to its customers' orders, inquiries
and purchases and any other customer information, once transactions have been
processed; (vi) assume all responsibility for: the use, development, content and
maintenance of Client's Business Logic and Data and all expenses and liabilities
relating thereto, any liability for any unauthorized use by Client of the
Outsourced Services and (vii) only use the Outsourced Services with respect to
credit transactions in the United States of America unless otherwise agreed by
the parties in advance.
6.3 Certain Obligations of xXxxxxx.xxx. xXxxxxx.xxx hereby represents, warrants
and covenants that throughout the term of this Agreement: (i) the Outsourced
Services shall be in compliance with all applicable laws including but not
limited to the federal
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and state laws pertaining to credit, debt collection, business practices and
consumer protection; (ii) Client shall have the right to disclose to its
customers those portions of the Outsourced Services made available for that
purpose by xXxxxxx.xxx; (iii) xXxxxxx.xxx shall not use the Client's Business
Logic and Data on behalf of any third party and only in connection with a credit
transaction involving the Client's customer on whom the information is to be
furnished and involving the extension of credit to, or review or collection of
an account of, the Client's customer; and (iv) xXxxxxx.xxx shall assume all
responsibility for: the use, development, content and maintenance of Outsourced
Services and all expenses and liabilities relating thereto, including any
liability for any unauthorized use by xXxxxxx.xxx of Client's Business Logic and
Data.
7. Indemnification.
7.1 Indemnification. Each party shall indemnify, defend and hold harmless the
other party and its officers, employees, agents, affiliates and subsidiaries
against and from all losses, expenses, liabilities, damages and costs including,
without limitation, reasonable attorneys' fees, that may at any time be incurred
by any of them in connection with any allegation, investigation, claim, suit or
other proceeding threatened or brought against either of them related to that
party's Intellectual Property, products, or services.
7.2 Notice; Defense of Claims. Each party shall give prompt written notice to
the other party of any claim for indemnification hereunder, specifying to the
extent known the amount and nature of the claim, and any matter which in the
opinion of such party is likely to give rise to an indemnification claim. The
indemnifying party shall have the right to control the defense through counsel
of its choosing. The indemnified party shall have the right to the extent of
its interests to participate on its own behalf and at its own expense in such
matter or its settlement through counsel of its choosing.
8. DISCLAIMER OF IMPLIED WARRANTIES AND LIMITATION OF LIABILITY. EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY HEREBY SPECIFICALLY DISCLAIMS
ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY SUBJECT
CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS OTHERWISE
EXPRESSLY PROVIDED HEREIN IN NO EVENT: (i) SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR
EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES), SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFITS OR
BUSINESS, COSTS OF DELAY, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION; NOR
(ii) SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT
MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS, IN THE AGGREGATE, OF
FEES PAID TO XXXXXXX.XXX HEREUNDER DURING THE THREE-MONTH PERIOD PRIOR TO THE
DATE THE CAUSE OF ACTION AROSE. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION
DO NOT APPLY TO ANY BREACH OF OBLIGATIONS HEREUNDER REGARDING CONFIDENTIALITY OR
INTELLECTUAL PROPERTY, OR LIABILITY ARISING FOR BODILY INJURY OF A PERSON, OR IN
STATES THAT PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES OR LIMITATIONS ON THE DURATION OF AN IMPLIED WARRANTY. THE PARTIES AGREE
THAT PAYMENTS TO XXXXXXX.XXX FOR SERVICES PERFORMED BY XXXXXXX.XXX AND RECEIVED
BY CLIENT SHALL NOT COUNT TOWARD FULFILLMENT OF THIS LIABILITY LIMITATION.
9. Miscellaneous.
9.1 Publicity. Neither party may use the other's name without the express
written consent of that party.
9.2 No Third Party Benefits. This Agreement is entered into solely for the
respective benefit of the parties and their respective successors and assigns,
and nothing in this Agreement will be construed as giving any entity other than
the parties to this Agreement, persons and entities expressly indemnified
hereunder and their respective successors and permitted assigns, any right,
remedy or claim under this Agreement.
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9.13 Section Headings. The section and subsection headings used herein are for
reference and convenience only, and shall not enter into the interpretation
hereof.
9.14 Neutral Construction. The parties to this Agreement agree that this
Agreement was negotiated fairly between them at arm's length and that the final
terms of this Agreement are the product of the parties' negotiations. Each party
warrants and represents that it has sought and received legal counsel of its own
choosing with regard to the contents of this Agreement and the rights and
obligations affected hereby. The parties agree that this Agreement shall be
deemed to have been jointly and equally drafted by them, and that the provisions
of this Agreement therefore should not be construed against a party or parties
on the grounds that the party or parties drafted or was more responsible for
drafting the provision(s).
9.15 Employees. Neither xXxxxxx.xxx nor Client shall hire or seek to engage the
services of, nor offer to pay commissions, compensation or any other form of
incentives to the employees or consultants of the other for any purpose
whatsoever without the express written consent of the other party. This
provision shall expire eighteen (18) months after the termination of this
Agreement.
9.16 Assignment. Neither this Agreement, nor any rights hereunder, may be
assigned by either party unless assignment is accepted in writing by the other
party and any attempt to assign this Agreement or any rights hereunder without
written approval the other party shall automatically terminate this Agreement.
/s/ KMH (Initial) 2/3/00 (Date) /s/ CDM (Initial) 1/28/00 (Date)
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xXxxxxx.xxx, Inc. Client
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