EXHIBIT 10.6
AGREEMENT BETWEEN
DEALERTRACK, INC.
AND
CREDITREPORTPLUS, LLC
This Agreement (this "Agreement") is effective as of December 1, 2004 (the
"Effective Date") by and between DealerTrack, Inc., a Delaware corporation, with
its principal place of business at 000 Xxxxxx Xxxx, Xxxxx X000, Xxxxxxxx XX
00000, ("DealerTrack"), and CreditReportPlus, LLC., ("CreditReportPlus"), a
Maryland limited liability corporation, with its principal place of business at
000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx 00000. DealerTrack
and CreditReportPlus are each a "Party" and together the "Parties" to this
Agreement.
BACKGROUND
A. DealerTrack, among other things, operates the DealerTrack Service (as
defined below).
B. CreditReportPlus, among other things, provides connectivity, credit bureau
management services, Base Functionality, Enhanced Base Functionality and
Advanced Functionality with regard to the products offered by "Credit
Bureau Report Providers" (further defined below) ("CreditReportPlus
Service").
C. CreditReportPlus and DealerTrack desire to work together to provide
DealerTrack Participating Customers with access to Credit Reports via the
CreditReportPlus Service as set forth in this Agreement. In order to
provide DealerTrack Participating Customers with access to the
CreditReportPlus Service, the Parties must develop and maintain an
interface between the DealerTrack Service and the CreditReportPlus Service
("DealerTrack/CreditReportPlus Interface"). Using the
DealerTrack/CreditReportPlus Interface, CreditReportPlus will provide Base
Functionality, Enhanced Base Functionality, and Advanced Functionality to
the DealerTrack Service for delivery to DealerTrack Participating
Customers. The CreditReportPlus Service will parse and transmit Data to
the DealerTrack Service as specified in the System Specifications and in
accordance with all agreements by and between Credit Bureau Report
Providers and CreditReportPlus, all agreements by and between Credit
Bureau Report Providers and DealerTrack and all agreements concerning the
delivery of Credit Reports through the DealerTrack Service. Presently,
DealerTrack accesses Credit Reports subject to agreements by and between:
(1) ADP and DealerTrack; (2) Xxxxxxxx and Xxxxxxxx and DealerTrack; (3)
CREDCO and certain DealerTrack Companies; and (4) certain Credit Bureau
Report Providers and certain DealerTrack Companies.
TERMS, CONDITIONS, COVENANTS, AND OBLIGATIONS
IN CONSIDERATION OF the mutual representations, warranties, covenants and
other terms set forth in this Agreement, DealerTrack and CreditReportPlus,
intending to be legally bound, agree as follows with respect to the Territory:
1. Definitions. As used in this Agreement, the following capitalized terms have
the indicated meanings:
1.1 "ADP" means Automatic Data Processing, Inc. with its corporate
headquarters at 0 XXX Xxxxxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, its
Affiliates, and any successor-in-interest.
1.2 "Advanced Functionality" means any material enhancement made to the
Base Functionality by CreditReportPlus, which is: (a) approved by
DealerTrack; and (b) not Enhanced Base Functionality as described more
fully in Section.2.3.
1.3 "Affiliate" of a Party means any person or entity that: (a) owns or
Controls, directly or indirectly, through one or more affiliates, at least
a majority of the voting capital stock of such Party; or (b) at least a
majority of whose voting capital stock is owned or Controlled, directly or
indirectly, through one or more affiliates by such Party; or (c) at least
a majority of whose voting capital stock is owned or Controlled, directly
or indirectly, through one or more affiliates, by another person or entity
that at such time also owns or Controlled, directly or indirectly, through
one or more affiliates, at least a majority of the voting capital stock of
such Party. A person or entity will be considered an Affiliate only so
long as it continues to satisfy the criteria for an Affiliate established
in this Section. For purposes of this Agreement, none of General Motors
Acceptance Corporation, Ford Motor Credit Company, DaimlerChrysler
Services North America LLC, or Toyota Financial Services will be deemed
Affiliates of Route One, LLC.
1.4 "Applicable Law" means any applicable federal, state, or local law,
regulation and/or judicial action including, but not limited to, the FCRA,
the USA PATRIOT Act of 2001, Pub. Law No. 107-56 (October 26, 2001), the
Xxxxx-Xxxxx-Xxxxxx Act 15 U.S.C. Section 6809 et seq, and all regulations
of federal, state, or local agencies.
1.5 "Audited Party" and "Auditing Party" shall have the meanings set forth
in Section 16.
1.6 "Automobile" means any passenger vehicle, light truck, snowmobile,
recreational vehicle, motorcycle, boat or other watercraft or commercial
vehicle.
1.7 "Base Functionality" means the level of Bureau Functionality,
information, speed, delivery, and eye-readable format of Credit Reports
provided by any Credit Bureau Report Provider to DealerTrack Participating
Customers as of the Effective Date.
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1.8 "Bureau Functionality" means the information and Data sent by a
Credit Bureau Report Provider in response to a request for a Credit Report
from such Credit Bureau Report Provider.
1.9 "Claim" shall have the meaning set forth in Section 13.
1.10 "Confidential Information" shall have the meaning set forth in
Section 12.1.
1.11 "Control" with regard to an entity, means the legal, beneficial or
equitable ownership, directly or indirectly, of fifty percent (50%) or
more of the capital stock (or other ownership interest, if not a
corporation) of such entity ordinarily having voting rights, or effective
Control of the activities of such entity regardless of the percentage of
ownership.
1.12 "Converted Dealer Tier 1 Volume" means the total number of Credit
Reports accessed by a Converted Dealer through DealerTrack, if any, in
November, 2003.
1.13 "Converted Dealer Tier 2 Volume" means the total number of Credit
Reports accessed by a Converted Dealer through DealerTrack, if any, in the
month of May, 2004 in excess of the total number of Credit Reports
accessed by such Converted Dealer through DealerTrack, if any, in
November, 2003. For avoidance of doubt, the Converted Dealer Tier 2 Volume
cannot be less than zero.
1.14 "Converted Dealer" means a DealerTrack Participating Customer that is
not a Direct Dealer or an Enterprise Dealer, and that originated its
relationship with DealerTrack using a Direct Credit Report Bureau Provider
Connection prior to November 30, 2003, and subsequently changed its
procedures to access Credit Reports through the DealerTrack System via a
means other than through the CreditReportPlus Service.
1.15 "Credit Bureau Report Providers" means Repositories, credit bureau
report resellers, sales agents, and marketing representatives, and other
sellers and providers of credit bureau reports, including Equifax,
Experian, Trans Union, CREDCO, Xxxxxxxx & Xxxxxxxx, and ADP, and that have
contracted and agreed to provide CreditReportPlus or DealerTrack Companies
with Credit Reports.
1.16 "Credit Bureau Report Provider Fee" means the amount owing from a
DealerTrack Participating Customer to CreditReportPlus or any
CreditReportPlus Affiliate in connection with the transmission of Base
Functionality for a non-CREDCO Credit Report to a DealerTrack
Participating Customer via the DealerTrack System however delineated or
denominated or the amount paid by a Credit Bureau Report Provider in a
given month for Base Functionality divided by the total number of Credit
Reports delivered via CreditReportPlus for the Credit Bureau Report
Provider in the given month. A Credit Bureau Report Provider Fee will
include any direct per-transaction amount for Base Functionality and a
proportionate amount of any other sums or consideration payable to
CreditReportPlus by the Credit Bureau Report Provider, directly or
indirectly, for the delivery of an individual non-CREDCO Credit Report
transaction during the month in which such Credit Report is transmitted.
Such
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proportionate amount will be calculated as a fraction of the total of the
amount of such other sums and the fair market value of such other
consideration for the monthly period multiplied by a fraction where the
denominator is the total number of Credit Reports transmitted by the
Credit Bureau Report Provider to CreditReportPlus during the month and the
numerator is 1.
1.17 "CreditCheck Products" means the Credit Report-related products made
available by ADP to DealerTrack Participating Customers using ADP
Subscriber Codes.
1.18 "CreditMaster Products" means the Credit Report-related products made
available to DealerTrack Participating Customers using Subscriber Codes
provided by CREDCO on behalf of Xxxxxxxx and Xxxxxxxx or by Xxxxxxxx and
Xxxxxxxx in lieu of CREDCO.
1.19 "Credit Report" or "Credit Bureau Report" means a consumer report, as
that term is defined in Section 603(d) of the FCRA.
1.20 "CreditReportPlus Computer" means the computer(s) controlled and
operated by CreditReportPlus on which CreditReportPlus maintains the
CreditReportPlus Software.
1.21 "CreditReportPlus/Credit Bureau Report Provider Agreement" means an
agreement between CreditReportPlus and a Credit Bureau Report Provider
that, among other things, permits CreditReportPlus to access Credit
Reports and Credit Report-related information, products, or services from
the Credit Bureau Report Provider that relates to DealerTrack
Participating Customers. For greater clarity, a Credit Report Plus/Credit
Bureau Report Provider Agreement may include a three-party agreement that
includes DealerTrack as a party.
1.22 "CreditReportPlus Customer" means a DealerTrack Participating
Customer that subscribes to the Advanced Functionality offered by
CreditReportPlus.
1.23 "CreditReportPlus Customer Agreement" means an agreement whereby a
DealerTrack Participating Customer agrees to accept Advanced Functionality
from CreditReportPlus.
1.24 "CreditReportPlus Fees" shall have the meaning set forth in Section
6.4(b).
1.25 "CreditReportPlus Marks" means trademarks, service marks, trade
names, domain names and corporate and brand identification and indicia,
including, word marks, logos, designs and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional names or
images, product designations and identifications, whether registered or
not, of CreditReportPlus.
1.26 "CreditReportPlus Outage Period" shall have the meaning set forth in
Section 3.2.
1.27 "CreditReportPlus Service" shall have the meaning set forth in the
Background section of this Agreement, as updated from time to time by
CreditReportPlus.
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1.28 "CreditReportPlus Software" means all software developed by or on
behalf of CreditReportPlus (whether internally developed, licensed or
owned by CreditReportPlus)
1.29 "CreditReportPlus System" means and consists of the CreditReportPlus
Computer, the CreditReportPlus Software, and all hardware and equipment
provided or used by CreditReportPlus and the CreditReportPlus Computer.
1.30 "Credit Report Transmission" shall have the meaning set forth in
Section 6.2(b).
1.31 "CREDCO" means First American CREDCO, a division of First American
Real Estate Solutions, LLC, a California limited liability company, and
any successor-in-interest thereto.
1.32 "CREDCO Products" means the Credit Report-related products offered by
CREDCO to DealerTrack Participating Customers using CREDCO Subscriber
Codes.
1.33 "Data" means any data, including any DMS Data, or information derived
or transmitted by or through one Party to the other Party in connection
with the terms of this Agreement.
1.34 "DMS Data" means any electronic data derived by or transmitted to
CreditReportPlus, directly or indirectly, by ADP, Xxxxxxxx and Xxxxxxxx,
or via any Third Party dealer management system provider that is not
included within a standard Credit Report.
1.35 "DealerTrack-ADP Agreement" means the Strategic Business, Marketing
and License Agreement dated January 30, 2003 by and among the DealerTrack,
Credit Online, Inc., ADP, and ADP Canada Co. (together with all
amendments, if any).
1.36 "Dealer" means a person or entity that operates a business
consisting, in whole or in part, of the sale or lease of Automobiles to
consumers.
1.37 "DealerTrack Credit Bureau Report Provider Agreement" means an
agreement between DealerTrack and a Credit Bureau Report Provider that,
among other things, permits DealerTrack to access Credit Reports and
Credit Report-related information, products or services from the Credit
Bureau Report Provider that relates to DealerTrack Participating
Customers. For greater clarity, an agreement between DealerTrack and a
Credit Bureau Report Provider, which also includes CreditReportPlus as a
party will be deemed a Credit Report Plus/Credit Bureau Report Provider
Agreement, as well as a Dealer Track Credit Bureau Report Provider
Agreement.
1.38 "DealerTrack-CREDCO Agreement" means the Joint Marketing Agreement
dated as of March 19, 2003, by and among DealerTrack Holdings, Inc.,
DealerTrack, Credit Online, Inc., and CREDCO (together with all
amendments, if any).
1.39 "DealerTrack/CreditReportPlus Interface" has the meaning set forth in
the Background Section of this Agreement and the
DealerTrack/CreditReportPlus Interface
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will be deemed to be a part of both the DealerTrack System and the
CreditReportPlus System as provided herein.
1.40 "DealerTrack Companies" means DealerTrack and its Affiliates in the
Territory. For greater clarity, the DealerTrack Companies do not include
dealerAccess Canada, Inc., an Ontario, Canada corporation so long as
dealerAccess Canada, Inc. does not operate in the Territory.
1.41 "DealerTrack Computer" means the computer(s) controlled and operated
by the DealerTrack Companies on which the DealerTrack Companies maintain
the DealerTrack Software.
1.42 "DealerTrack Dealer" means a Dealer that is a Subscriber to the
DealerTrack Service or any portion thereof.
1.43 "DealerTrack Enhanced Base Functionality" will have the meaning set
forth in Section 2.10
1.44 "DealerTrack Fees" will have the meaning set forth in Section 6.4.
1.45 "DealerTrack Financial Institution" means a financial institution or
other financing source, which is a Subscriber to the DealerTrack Service,
or any portion thereof.
1.46 "DealerTrack Marks" means trademarks, service marks, trade names,
domain names and corporate and brand identification and indicia,
including, word marks, logos, designs and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional names or
images, product designations and identifications, whether registered or
not, of the DealerTrack Companies or other DealerTrack Affiliates.
1.47 "DealerTrack Outage" shall have the meaning set forth in Section 2.9
1.48 "DealerTrack Participating Customer" means a DealerTrack Dealer
approved by a Credit Bureau Report Provider and DealerTrack to access Base
Functionality and/or Enhanced Base Functionality from such Credit Bureau
Report Provider through the DealerTrack System.
1.49 "DealerTrack Service" means DealerTrack's web-based system that
facilitates retail Automobile finance and lease interactions and
transactions between DealerTrack Dealers and DealerTrack Financial
Institutions, available at xxx.xxxxxxxxxxx.xxx, as updated from time to
time by DealerTrack, or such additional or successor websites that
DealerTrack establishes to perform the same or similar functionality as
DealerTrack performs at xxx.xxxxxxxxxxx.xxx ("DealerTrack Service").
1.50 "DealerTrack Software" means DealerTrack Companies' software (whether
internally developed, licensed or owned by DealerTrack Companies) which
support the
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DealerTrack Service and/or contain applications that are a part of the
DealerTrack Service and all operating or system software installed on the
DealerTrack Computer.
1.51 "DealerTrack System" means and consists of the DealerTrack Computer,
the DealerTrack Software, the DealerTrack Service and all hardware,
equipment provided or used by DealerTrack Companies.
1.52 "Direct Dealer" means any DealerTrack Participating Customer that is
not an Enterprise Dealer and that originated its relationship with
DealerTrack using a Direct Credit Report Bureau Provider Connection prior
to November 30, 2003, and utilizes a Direct Credit Report Bureau Provider
Connection in a given month other than in accordance with a
CreditReportPlus Outage Period.
1.53 "Direct Dealer Tier 1 Volume" means the total number of Credit
Reports, if any, accessed by a Direct Dealer through DealerTrack in
November, 2003.
1.54 "Direct Dealer Tier 2 Volume" means the total number of Credit
Reports accessed by a Direct Dealer through DealerTrack, if any, in the
month of May, 2004 in excess of the total number of Credit Reports
accessed by such Direct Dealer through DealerTrack, if any, in November,
2003. For avoidance of doubt, the Direct Dealer Tier 2 Volume cannot be
less than zero.
1.55 "Direct Credit Bureau Report Provider Connection" means a process
whereby a DealerTrack Participating Customer accesses Credit Reports
directly from a Credit Bureau Report Provider through the DealerTrack
System, but will not include CreditMaster Products, CreditCheck Products
or CREDCO Products.
1.56 "Disclosing Party" shall have the meaning set forth in Section 12.1.
1.57 "Effective Date" has the meaning set forth in the introductory
paragraph.
1.58 "Enhanced Base Functionality" means the Base Functionality as
modified in accordance with Section 2.3 and 2.10.
1.59 "Enterprise Dealer" means a DealerTrack Participating Customer for
which DealerTrack agrees to enable such DealerTrack Participating Customer
to access Credit Reports via the DealerTrack System using a Direct Credit
Bureau Report Provider Connection and an Enterprise Subscriber Code,
without DealerTrack receiving fees from any source, for such Credit
Reports. DealerTrack will give notice to CreditReportPlus of DealerTrack
Participating Customers that it designates to be Enterprise Dealers within
fourteen (14) days of agreeing to provide Credit Reports to an Enterprise
Dealer.
1.60 "Enterprise Dealer Tier 1 Volume" means the total number of Credit
Reports, if any, accessed by an Enterprise Dealer through DealerTrack in
November, 2003.
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1.61 "Enterprise Dealer Tier 2 Volume" means the total number of Credit
Reports, accessed by an Enterprise Dealer through DealerTrack, if any, in
the month of May, 2004 in excess of the total number of Credit Reports
accessed by such Enterprise Dealer through DealerTrack, if any, in
November, 2003. For avoidance of doubt, the Enterprise Dealer Tier 2
Volume cannot be less than zero.
1.62 "Enterprise Subscriber Codes" means Subscriber Codes provided
directly to an Enterprise Dealer by a Credit Bureau Report Provider other
than CREDCO or ADP and used by the Enterprise Dealer to access Credit
Reports through the DealerTrack System by a means other than
CreditReportPlus.
1.63 "Equifax" means Equifax Inc., a corporation with its primary
headquarters at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, its Affiliates,
and any successor-in-interest thereto.
1.64 "Experian" means Experian Information Solutions, Inc., an Ohio
corporation with its offices at 000 Xxxxx Xxxx, Xxxxx Xxxx, XX 00000, its
Affiliates, and any successor-in-interest thereto.
1.65 "Force Majeure Event" will have the meaning set forth in Section
17.8.
1.66 "FCRA" will mean the Fair Credit Reporting Act, 15 U.S.C. Section
1681 et seq. and all amendments thereto, including the Fair and Accurate
Credit Transactions Act of 2003, Public Act 108-159 (December 4, 2003).
1.67 "Indemnified Party" and "Indemnifying Party" shall have the meanings
set forth in Section 13.
1.68 "Intellectual Property" means any intellectual property or
proprietary rights, including, copyright rights (regardless of the medium,
including to electronic, imaged or audiovisual works), Marks, patent
rights (including U.S.-issued patents, U.S. patent applications and
disclosures), know-how, inventions, rights of priority and trade secret
rights, recognized in any country or jurisdiction in the world, including
any derivative works and other refinements and enhancements thereof.
1.69 "Initial Term" shall have the meaning set forth in Section 8.
1.70 "Interface Development Schedules" shall have the meaning set forth in
Section 4.10.
1.71 "Live Production Date" means the first date the
DealerTrack/CreditReportPlus Interface is operational for production
purposes for processing Base Functionality.
1.72 "Marks" means the CreditReportPlus Marks for CreditReportPlus and the
DealerTrack Marks for DealerTrack Companies.
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1.73 "Property" shall have the meaning set forth in Section 9.3.
1.74 "Receiving Party" shall have the meaning set forth in Section 12.1.
1.75 "Renewal Term" shall have the meaning set forth in Section 8.
1.76 "Repository" means an entity that gathers credit and other
information from one or more of its or its Affiliate's database
repositories (each a "Repository" and, collectively, the "Repositories")
and uses such information to produce an integrated Credit Report and/or a
single Credit Report (together with credit scores and other enhancements
that the Repository may offer from time to time, as well as various
formats of such reports intended for use by customers, including
eye-readable and raw data) for sale to customers with a permissible
purpose for such report.
1.77 "Xxxxxxxx and Xxxxxxxx" means the Xxxxxxxx and Xxxxxxxx Company with
its primary headquarters at 0 Xxxxxxxx Xxx, Xxxxxxxxx, Xxxx 00000, its
Affiliates, and any successor-in-interest.
1.78 "SAS 70" shall have the meaning set forth in Section 4.6.
1.79 The "Service Level Agreement" shall mean a form of the agreement
attached as Exhibit A hereto and amended and described in Section 3.2,
4.10 and 4.13. The form of the Service Level Agreement attached as Exhibit
A is the Service Level Agreement in effect as of the Effective Date.
1.80 "Subscriber" means a Dealer that enters into an agreement or
arrangement for a product or service.
1.81 "Subscriber Code" means that unique code required by a Credit Bureau
Report Provider under an agreement with such Credit Bureau Report Provider
in order for the Subscriber to access Data compiled and maintained by the
Credit Bureau Report Provider through DealerTrack or such Credit Bureau
Report Provider.
1.82 "Systems" means the DealerTrack System and the CreditReportPlus
System.
1.83 "System Specifications" means a document(s) mutually agreed upon by
the Parties, setting forth the technical requirements, data transfer
requirements, and functionality objectives for implementing this
Agreement.
1.84 "Term" will consist of the "Original Term" and the "Renewal Terms",
if any, and have the meaning set forth in Section 8 of this Agreement.
1.85 "Territory" means the United States, its territories and possessions.
1.86 "Third Party" means a person or entity other than: (a)
CreditReportPlus; (b) the DealerTrack Companies; (c) an Affiliate of
CreditReportPlus; (d) an affiliate of the
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DealerTrack Companies; or (e) an employee of or agent for (a) through (d)
but only when acting as an employee or agent of (a) through (d).
1.87 "Tier 1 Credit Reports" means three hundred and fifty-two thousand
and four hundred (352,400) Credit Reports less the sum of Converted Dealer
Tier 1 Volume, Enterprise Dealer Tier 1 Volume and Direct Dealer Tier 1
Volume in the given month, provided that for purposes of calculating Tier
1 Credit Reports, in no event will the sum of Converted Dealer Tier 1
Volume, Enterprise Dealer Tier 1 Volume and Direct Dealer Tier 1 Volume in
the given month exceed three hundred and fifty-two thousand and four
hundred (352,400) and any Tier 1 Volume in excess of such figure will be
disregarded for all purposes of this calculation.
1.88 "Tier 2 Credit Reports" means eighty thousand five hundred thirty
(80,530) Credit Reports less the sum of Converted Dealer Tier 2 Volume,
Enterprise Dealer Tier 2 Volume and Direct Dealer Tier 2 Volume in the
given month, provided that for purposes of calculating Tier 2 Credit
Reports, in no event will the sum of Converted Dealer Tier 2 Volume,
Enterprise Dealer Tier 2 Volume and Direct Dealer Tier 2 Volume in the
given month exceed eighty thousand five hundred thirty (80,530) and any
Tier 2 Volume in excess of such figure will be disregarded for all
purposes of this calculation.
1.89 "TransUnion" means TransUnion LLC, a limited liability company with
its primary headquarters at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxx, XX 00000, its
Affiliates, and any successor-in-interest thereto.
1.90 "User" means any employee or agent of a Party authorized to use a
System, including the DealerTrack/CreditReportPlus Interface to access the
CreditReportPlus Service, and authorized DealerTrack Participating
Customers, including CreditReportPlus Customers.
1.91 "Wind-Down Period" shall have the meaning set forth in Section 8.5.
2. CreditReportPlus Obligations and Responsibilities.
2.1 CreditReportPlus/Credit Bureau Report Providers Agreements.
CreditReportPlus will enter into CreditReportPlus/Credit Bureau Report
Provider Agreements with various Credit Bureau Report Providers to provide
Base Functionality to DealerTrack Participating Customers in exchange for
compensation to CreditReportPlus from the Credit Bureau Report Providers
or from the DealerTrack Participating Customers. CreditReportPlus will at
all times comply with all its obligations under each
CreditReportPlus/Credit Bureau Report Provider Agreement. DealerTrack
shall have the right to approve each provision of a
CreditReportPlus/Credit Bureau Report Provider Agreement and any amendment
or modification thereto that affects or relates to the rights,
obligations, or services to or from DealerTrack or a Participating
DealerTrack Customer. In the event all CreditReportPlus/Credit Bureau
Report Provider Agreements with Equifax, Experian, and TransUnion are
terminated, DealerTrack will have the right to terminate this Agreement.
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2.2 Subscriber Codes. Subject to Sections 3.1 and 4.10, CreditReportPlus
will have primary responsibility to enable and disable DealerTrack
Participating Customer's access to Base Functionality. Such access will
only be enabled if the DealerTrack Participating Customer: (a) has
executed all applicable documents and agreements required by the Credit
Bureau Report Provider and such agreements are currently in effect and
enforceable; (b) has represented that it has a permissible purpose to
receive such Credit Reports as required by Applicable Law; (c) has met and
continues to meet all Credit Bureau Report Provider membership
requirements and (d) has a valid Subscriber Code. Subject to Sections 3.1
and 4.10, CreditReportPlus will maintain DealerTrack Participating
Customer Subscriber Codes in its database for the purposes of performing
its obligations under this Agreement. CreditReportPlus will maintain the
security of Subscriber Codes in the CreditReportPlus System and
CreditReportPlus will not permit or allow access to Subscriber Codes by
any unauthorized persons nor will CreditReportPlus use the Subscriber
Codes for any purpose other than carrying out its obligations under this
Agreement.
2.3 Enhanced Base Functionality. CreditReportPlus will modify the Base
Functionality ("Enhanced Base Functionality") upon the following
conditions:
(a) If required by Applicable Law.
(b) To support changes to the CreditReportPlus Service or
CreditReportPlus System required by the Credit Bureau Report Providers
under the terms of a CreditReportPlus/Credit Bureau Report Provider
Agreement within a commercially reasonable timeframe after the Credit
Bureau Report Provider conveys their changes in writing to
CreditReportPlus. CreditReportPlus may charge Credit Bureau Report
Providers reasonable additional fees for certain Enhanced Base
Functionality. CreditReportPlus and DealerTrack must mutually agree upon
the terms and fees charged by CreditReportPlus or DealerTrack to
DealerTrack Participating Customers, if any, for the Enhanced Base
Functionality to DealerTrack Participating Customers.
(c) If CreditReportPlus elects to support changes requested but not
required by the Credit Bureau Report Providers, CreditReportPlus will do
so within a commercially reasonable timeframe after the Credit Bureau
Report Provider conveys its requested changes in writing to
CreditReportPlus. CreditReportPlus may charge the Credit Bureau Report
Provider reasonable fees for making the changes. In such event,
CreditReportPlus will inform DealerTrack of its intention to make the
changes at least fourteen (14) calendar days prior to its doing so. In the
event Credit Report Plus and the Credit Bureau Report Provider do not
reach agreement for making a requested change (including the fees),
DealerTrack will have the right to make and support the changes directly
within the DealerTrack System as a DealerTrack Enhanced Base
Functionality. In such event, DealerTrack will inform CreditReportPlus of
its intention to make the changes at least fourteen (14) calendar days
prior to its doing so.
(d) CreditReportPlus must obtain DealerTrack's prior approval before
charging any DealerTrack Participating Customers for any Enhanced Base
Functionality.
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2.4 Advanced Functionality. Advanced Functionality will consist of
material enhancements made to the Base Functionality or Enhanced Base
Functionality that are developed by CreditReportPlus to provide additional
features (details and analysis) to the User from information contained in
Credit Reports. CreditReportPlus agrees to only implement Advanced
Functionality approved in advance by DealerTrack. Only DealerTrack
Participating Customers having relationships with Credit Bureau Report
Providers authorizing them to access Credit Reports through DealerTrack
may access Advanced Functionality. CreditReportPlus will not, at any time,
provide more favorable pricing to any Dealer than it offers to DealerTrack
Participating Customers for substantially similar Advanced Functionality,
directly or indirectly. Such pricing will be evaluated on both a
per-Credit Report and total relationship pricing basis for the Dealer
receiving the Advanced Functionality. In the event CreditReportPlus agrees
to provide pricing to any Dealer for substantially similar Advanced
Functionality that is more favorable than pricing offered to any
DealerTrack Participating Customers, CreditReportPlus agrees to
immediately amend or cause to be amended each CreditReportPlus Customer
Agreement to reflect the more favorable pricing going forward, without any
other change to be made to such CreditReportPlus Customer Agreements, the
DealerTrack Participating Customer's continuing receipt of Advanced
Functionality and DealerTrack's performance under this Agreement being
deemed the consideration for such amendment and reduced pricing.
CreditReportPlus will inform the DealerTrack Participating Customer of the
pricing adjustment using a communication mutually approved by DealerTrack
and CreditReportPlus. Nothing in Section 2.4 shall prohibit
CreditReportPlus from offering CREDCO customers Advanced Functionality at
a different or more favorable price than CreditReportPlus offers Advanced
Functionality to non-CREDCO customers. CreditReportPlus agrees that
DealerTrack Participating Customers that use a CREDCO Subscriber Code will
receive Advanced Functionality at the same price as CREDCO customers who
are not DealerTrack Participating Customers.
2.5 CreditReportPlus System. CreditReportPlus agrees, at its own expense,
to modify, enhance, or improve the CreditReportPlus System and to conform
to technical requirements that DealerTrack and CreditReportPlus may
mutually agree to from time to time. Nevertheless, CreditReportPlus is
solely responsible for all matters related to the design, maintenance, and
support of the CreditReportPlus System, including functionality relating
to the transmission of Credit Reports to the DealerTrack System, security
procedures, and all other related matters.
2.6 Credit Bureau Report Provider Relationships. CreditReportPlus agrees
that it will not enter into a "reseller agreement" with a Credit Bureau
Report Provider during the Term.
2.7 Non-Compete. During the Term and for an additional period of
twenty-four (24) calendar months thereafter, CreditReportPlus will not,
directly or through any Affiliate or Third Party, provide Advanced
Functionality for Credit Reports, other than Credit Reports of
CreditReportPlus Affiliates, to Dealers via Route One LLC or any
Affiliates or successors-in-interest of Route One LLC. This provision will
not limit any of DealerTrack's rights under any other agreement or
instrument.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
12
2.8 CreditReportPlus Assumption of DealerTrack Obligations During
DealerTrack Service Outages. To the extent the Parties are able to develop
and implement mutually agreeable processes and procedures to securely do
so, CreditReportPlus will have the right to have DealerTrack Participating
Customers access CreditReportPlus directly and bypass the DealerTrack
System in providing such Credit Reports to DealerTrack Participating
Customers at any time when the Bureau Functionality of the DealerTrack
System is unavailable for any material period of time ("DealerTrack Outage
Period"). At no other time, and under no other circumstances, will
CreditReportPlus provide access to Base Functionality or Enhanced Base
Functionality directly to DealerTrack Participating Customers. In the
event of a DealerTrack Outage, DealerTrack will immediately take all
commercially reasonable steps to identify the cause of the problem, remedy
the malperformance, and restore full service as soon as commercially
practicable. During a DealerTrack Outage Period, CreditReportPlus will
have the right to advise DealerTrack Participating Customers that during
the DealerTrack Outage Period, Credit Reports will be temporarily
available directly from CreditReportPlus. When DealerTrack restores Bureau
Functionality or provides reasonable assurances to CreditReportPlus of it
being ready, willing, and able to fully perform, CreditReportPlus will
direct the DealerTrack Participating Customers to access Credit Reports
via the DealerTrack/CreditReportPlus Interface so that DealerTrack
Participating Customers that were provided direct Credit Report access
during the DealerTrack Outage Period will resume Credit Report access via
the DealerTrack Service. During the DealerTrack Outage Period, DealerTrack
will cooperate with CreditReportPlus and provide all information that
CreditReportPlus may reasonably request concerning the DealerTrack System,
and other functionalities to enable CreditReportPlus to perform the
services during the DealerTrack Outage Period. In the event any
DealerTrack Outage Period lasts longer than ten (10) calendar days,
CreditReportPlus will have the right to terminate this Agreement.
2.9 DMS Data. In the event CreditReportPlus obtains, directly or
indirectly, any DMS Data, CreditReportPlus will either: (a) obtain for
DealerTrack at no cost the right to use such DMS Data under terms and
conditions substantially similar to that in any agreement between
DealerTrack and that DMS provider as of the time CreditReportPlus obtains
the right to use such DMS Data ; or (b) refrain from using such DMS Data
in developing any Advanced Functionality without DealerTrack's prior
consent, which DealerTrack will have the right to grant or deny in its
reasonable discretion
2.10 DealerTrack Requested Changes. To support changes to the
CreditReportPlus Service or CreditReportPlus System reasonably requested
by DealerTrack and approved by CreditReportPlus within a commercially
reasonable timeframe after DealerTrack conveys its desired changes in
writing to CreditReportPlus, CreditReportPlus, in its sole discretion may
make such changes and the parties will mutually agree as to whether the
changes constitute Advanced Functionality or Enhanced Base Functionality.
Below are possible responses by CreditReportPlus to a DealerTrack
requested change:
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
13
(i) CreditReportPlus will agree to support the DealerTrack
requested change as Enhanced Base Functionality and charge
DealerTrack a reasonable fee for such change;
(ii) CreditReportPlus will agree to support the DealerTrack
requested change as Enhanced Base Functionality and charge the
DealerTrack Participating Customer a transaction fee or fixed
monthly fee for the change;
(iii) CreditReportPlus will agree to support the DealerTrack
requested change as Enhanced Base Functionality and provide it
at no charge to DealerTrack or the DealerTrack Participating
Customer;
(iv) CreditReportPlus will agree to support the DealerTrack
requested change as Advanced Functionality and include the
change as part of the Advanced Functionality fee;
(v) CreditReportPlus will agree to support the DealerTrack
requested change as Advanced Functionality and charge an
incremental fee over and above the Advanced Functionality fee;
or
(vi) CreditReportPlus may not agree to implement the DealerTrack
requested change.
CreditReportPlus may charge DealerTrack reasonable fees for Enhanced Base
Functionality, provided that in lieu of DealerTrack paying
CreditReportPlus such fees, DealerTrack will have the right to make the
requested change directly within the DealerTrack System. DealerTrack will
only provide DealerTrack Enhanced Base Functionality (as defined below)
changes directly within the DealerTrack System if: (i) DealerTrack has
previously requested the change be made by CreditReportPlus; and (ii) the
change requested by DealerTrack has not been approved for implementation
by CreditReportPlus. In such event, DealerTrack will inform
CreditReportPlus of its intention to make the changes at least fourteen
(14) calendar days prior to its doing so. The Parties acknowledge that
DealerTrack is obligated to give ninety (90) days notice of changes to
certain DealerTrack Financial Institutions of changes to the DealerTrack
System and the Parties will endeavor to implement changes to allow for the
90-day notice period wherever such changes affect a DealerTrack Financial
Institution and the 90-day notice period is commercially practicable. For
purposes of Sections 2.3, 2.4 and this Section 2.10, and without
limitation to the characterization of other changes, any change requested
or required by a Repository; or any change by CreditReportPlus to
facilitate DealerTrack aggregating Credit Report information with
non-Credit Report information; will be, in each case, an Enhanced Base
Functionality change. Base Functionality additions or changes made by
DealerTrack within the DealerTrack System, pursuant to this Section 2.10,
are hereafter referred to as DealerTrack Enhanced Base Functionality.
Other than those changes DealerTrack has agreed to consult with
CreditReportPlus in advance of the changes, nothing contained in this
Agreement will prohibit or restrict DealerTrack from making changes to the
DealerTrack System or the DealerTrack Service that DealerTrack determines
to be reasonable or necessary for the conduct of its business.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
14
DealerTrack will not be required to request CreditReportPlus to make such
changes prior to DealerTrack making such changes.
3. DealerTrack Obligations and Responsibilities.
3.1 Existing DealerTrack Agreements. Subject to Section 3.2, as soon as
reasonably practical after the Live Production Date, DealerTrack will use
commercially reasonable efforts to receive all Credit Reports from CREDCO,
Equifax, Trans Union, or Experian, via the CreditReportPlus Service.
DealerTrack will use commercially reasonable efforts to continue to use
the CreditReportPlus Service to receive Credit Reports, provided however
the foregoing provisions shall not apply: i) with respect to CreditCheck
Products and Enterprise Dealers ; ii) if CreditReportPlus is in default of
this Agreement; iii) for any individual Credit Bureau Report Provider, if
there is no CreditReportPlus/Credit Bureau Report Provider Agreement in
effect with that Credit Bureau Report Provider; or iv) for any individual
Credit Bureau Report Provider, if there exists an applicable
CreditReportPlus/Credit Bureau Report Provider Agreement and
CreditReportPlus is in default thereof. During the Term, DealerTrack
agrees to use commercially reasonable efforts to assist CreditReportPlus
in negotiating agreements with ADP and other providers of Credit Reports
to use the CreditReportPlus Service to deliver Credit Reports to
DealerTrack Participating Customers. However, the failure by
CreditReportPlus to enter into any such agreement will not be a breach
hereof. Nothing contained in this Section 3.1 will require DealerTrack to
take or not take any act which act or omission would have the effect of
constituting a default under any existing agreement as of the Effective
Date to which DealerTrack is a Party or by which any of its assets are
bound. Subject to Section 3.7 and the other terms of this Agreement, the
obligations of DealerTrack stated herein to use CreditReportPlus to access
Credit Reports will apply to the delivery of Credit Reports regardless of
where in the DealerTrack Service the User has the capability to access a
Credit Report.
3.2 DealerTrack's Assumption of CreditReportPlus Obligations During
CreditReportPlus Service Outages. DealerTrack will have the right to
access Credit Reports directly from a Credit Bureau Report Provider and
bypass CreditReportPlus in providing such Credit Reports to DealerTrack
Participating Customers at any time when any part of CreditReportPlus'
System or the DealerTrack/CreditReportPlus Interface are unavailable,
service interruptions take place, or CreditReportPlus is otherwise unable
to meet the performance standards in the Service Level Agreement for any
material period of time ("CreditReportPlus Outage Period"). In such event,
CreditReportPlus will immediately take all commercially reasonable steps
to identify the cause of the problem, remedy the malperformance, and
restore full service as soon as commercially practicable. Until
CreditReportPlus does so, DealerTrack will have the right to deliver a
message on its web site or by other media advising Dealers that during the
CreditReportPlus Outage Period, Advanced Functionality will be temporarily
unavailable. When CreditReportPlus restores operations or provides
reasonable assurances to DealerTrack of it being ready, willing, and able
to fully perform, DealerTrack will make available to CreditReportPlus all
information it obtains from Credit Reports during the CreditReportPlus
Outage Period (subject to any limitations contained in the applicable
DealerTrack Credit Bureau Report
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
15
Provider Agreement) and CreditReportPlus will promptly generate Advanced
Functionality from such information for all DealerTrack Participating
Customers that so request it as well as retaining such information in the
same manner and for the same period of time that it retains such
information absent a service interruption. During the CreditReportPlus
Outage Period, CreditReportPlus will cooperate with DealerTrack and
provide all information that DealerTrack may reasonably request concerning
the CreditReportPlus System to enable DealerTrack to perform the services
during the CreditReportPlus Outage Period. In the event any
CreditReportPlus Outage Period lasts longer than ten (10) calendar days,
DealerTrack will have the right to terminate this Agreement.
3.3 Subscriber Codes. To the extent permitted by Applicable Law and the
applicable DealerTrack Credit Bureau Report Provider Agreement: (a)
DealerTrack will provide to CreditReportPlus on or prior to thirty (30)
days from the Effective Date, a master list of those Subscriber Codes that
are necessary for CreditReportPlus to access Credit Report information for
DealerTrack Participating Customers; and (b) in connection with each
Credit Report request, DealerTrack agrees to make available the Subscriber
Code for the DealerTrack Participating Customer making the Credit Report
request. DealerTrack will maintain DealerTrack Participating Customer
Subscriber Codes provided to DealerTrack in accordance with a
CreditReportPlus/Credit Bureau Report Provider Agreement in the
DealerTrack database for the purposes of performing its obligations under
this Agreement and for such other purposes as may be permitted or required
by the CreditReportPlus/Credit Bureau Report Provider Agreements.
3.4 Enhanced Base Functionality and Advanced Functionality. DealerTrack
will review for approval written proposals from CreditReportPlus for
Enhanced Base Functionality and Advanced Functionality other than those
required by Applicable Law or as required by the Credit Bureau Report
Providers under the terms of the CreditReportPlus/Credit Bureau Report
Provider Agreement. DealerTrack will respond to such proposals within a
reasonable time (for top-line concepts, generally not later than fourteen
(14) calendar days from receipt) which responses may consist of a request
for commercially reasonable additional time to review or make alternative
proposals if DealerTrack does not approve the proposal made by
CreditReportPlus. CreditReportPlus will respond in a like reasonable time
and manner to DealerTrack's alternative proposals and the Parties will
work together to complete the approval and execution process in a
commercially reasonable and timely manner. In the event either Party does
not respond to written proposals or counterproposals in a timely manner,
the requesting Party will have the right to notify the Executive Vice
President or President of the other Party at the address set forth herein
for notices, and advise such person of the failure to respond and request
a prompt response. If a response is not forthcoming within five (5)
business days of the Executive Vice President's or President's receipt of
notice, the requesting party may notify the Chief Executive Officer of the
other Party and request a response. If the other Party still fails to
respond within a succeeding three (3) business day period, the proposal
will be deemed accepted on the terms proposed.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
16
3.5 DealerTrack System; User Interface. DealerTrack agrees, at its own
expense, to modify, enhance, and improve the DealerTrack System and to
conform to technical requirements to which DealerTrack and
CreditReportPlus may mutually agree upon from time to time. Nevertheless,
DealerTrack is solely responsible for all matters related to the design,
maintenance and support of the DealerTrack System, including functionality
relating to the receipt of Credit Reports by the DealerTrack System and
via the CreditReportPlus Service, security procedures and all other
related matters.
3.6 Credit Bureau Report Provider Requirements. In the event DealerTrack
is not a party to a CreditReportPlus/Credit Bureau Report Provider
Agreement, DealerTrack will comply with certain terms of the
CreditReportPlus/Credit Bureau Provider Agreement as the Parties mutually
agree.
3.7 Acquisitions.
(a) Exercise of Option by CREDCO. If: (i) any DealerTrack Company
obtains Control of an entity that is not an Affiliate as of the Effective
Date (each a "New Affiliate"), (ii) such New Affiliate is in the business
of providing Credit Reports to Dealers in the Territory; and (iii) CREDCO
has exercised the Option (as that term is defined in Section 6.4.1 of the
First Amendment to Joint Marketing Agreement effective March 19, 2003
between CREDCO and DealerTrack), DealerTrack will use commercially
reasonable efforts to cause such New Affiliate to enter into agreements
with CreditReportPlus if such New Affiliate utilizes the DealerTrack
Service for access to or for delivery of Credit Reports and for which
CreditReportPlus provides an interface to such New Affiliate's system.
DealerTrack will use commercially reasonable efforts to cause New
Affiliates that provide or deliver Credit Reports via a means other than
the DealerTrack Service to use the CreditReportPlus Service and the
DealerTrack/CreditReportPlus Interface on similar terms to this Agreement.
If CREDCO exercises the Option and such New Affiliate enters into an
agreement with CreditReportPlus, the New Affiliate's Credit Report
Transmission volume will be combined with DealerTrack's Credit Report
Transmission volume for purposes of calculating the Repository
compensation due from CreditReportPlus pursuant to Section 6.2, and the
Tier 1 Credit Reports level will not be adjusted upward to include such
new volume to be processed through the DealerTrack/CreditReportPlus
Interface.
(b) Non-exercise of Option by CREDCO. If: (i) any DealerTrack Company
obtains Control of a New Affiliate, (ii) such New Affiliate is in the
business of providing Credit Reports to Dealers in the Territory; and
(iii) CREDCO has not exercised the Option, DealerTrack will use
commercially reasonable efforts to cause such New Affiliate to enter into
agreements with CreditReportPlus if such New Affiliate utilizes the
DealerTrack Service for access to or for delivery of Credit Reports and
for which CreditReportPlus provides an interface to such New Affiliate's
system. For New Affiliates for which CREDCO does not exercise the Option,
DealerTrack will use commercially reasonable efforts to cause New
Affiliates that provide or deliver Credit Reports via a means other than
the DealerTrack Service to use the CreditReportPlus Service and the
DealerTrack/CreditReportPlus Interface on mutually agreeable terms. If
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
17
such New Affiliate enters into an agreement with CreditReportPlus, the New
Affiliate's Credit Report Transmission volume will be combined with
DealerTrack's Credit Report Transmission volume for purposes of
calculating the Repository compensation due from CreditReportPlus pursuant
to Section 6.2, and the Tier 1 Credit Reports level will be adjusted
upward by the Credit Report volume for the New Affiliate Dealers as of the
calendar month during which the respective DealerTrack Company obtained
control of the New Affiliate and that are processing through the
DealerTrack/CreditReportPlus Interface in the given month. However, if
CREDCO has not exercised the Option, nothing contained herein will require
such entities to do business with CreditReportPlus.
4. Mutual Obligations.
In addition to the obligations and responsibilities of the Parties set out
in Sections 2 and 3 of this Agreement, the Parties agree as follows:
4.1 Cooperation. Each Party agrees to use commercially reasonable efforts
to work with the other Party to maintain the connections necessary for
DealerTrack Participating Customers to access the CreditReportPlus Service
by providing the necessary information to the other Party as set forth in
a Systems Specifications document including access, format and translation
information.
4.2 Development and Maintenance of Systems. Each Party agrees to use
commercially reasonable efforts to develop the
DealerTrack/CreditReportPlus Interface and maintain its System so that,
subject to the other Party's performance of its obligations under this
Agreement, the DealerTrack/CreditReportPlus Interface will process Data in
accordance with the reasonable requirements for each Credit Bureau Report
Provider.
4.3 Virus Protection and Other System Security. Each Party agrees to
operate and manage its System in such a manner as to keep it from
degrading the performance of, or otherwise materially and adversely
impacting, the CreditReportPlus System, DealerTrack System, the
CreditReportPlus Service, the DealerTrack Service or the
DealerTrack/CreditReportPlus Interface, as applicable, by the introduction
of: (a) intentionally injurious instructions (e.g. systems "viruses") that
are designed to modify, damage, delete or disable the CreditReportPlus
System, the DealerTrack System, the CreditReportPlus Service, the
DealerTrack Service or the DealerTrack/CreditReportPlus Interface, as
applicable; or (b) code that triggers a harmful or inadvertent
modification, shut down or disablement of the CreditReportPlus System, the
DealerTrack System, the CreditReportPlus Service, the DealerTrack Service
or the DealerTrack/CreditReportPlus Interface, as applicable. In the event
of such degradation or adverse impact, upon notification from the affected
Party, the degrading Party will promptly terminate those processes causing
such degradation or adverse impact and will implement as soon as is
reasonably commercially practicable any necessary changes to its System to
reasonably prevent such degradation or adverse impact from continuing or
reoccurring. Each Party will cooperate in good faith with the other Party
as reasonably appropriate to assist each other in meeting the obligations
under this Section 4.3. Notwithstanding the foregoing, in the event the
continued use of the other Party's system presents a material risk of
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
18
substantial damage to a Party's System or business reputation, the
impacted Party will have the right to temporarily terminate the other
Party's use of the DealerTrack/CreditReportPlus Interface, until such
changes are made.
4.4 Credit Report Access Restriction. Each Party agrees to restrict access
to Credit Reports on its respective System, to Users logging in with the
proper identification codes and password(s). Each Party will use
commercially reasonable efforts to cause its respective System to be
safeguarded against "hacker" intrusions or other unauthorized uses and
each Party will be responsible for complying with consumer notice laws or
other provisions of Applicable Law in the event of unauthorized access or
use. Each Party will be solely responsible for any additional security
measures it reasonably determines that it needs to take.
4.5 Notices of Security Risks. Each Party will promptly notify the other
Party of any known material security breaches or holes in the Systems or
the DealerTrack/CreditReportPlus Interface, which may have a material
adverse impact on the other Party or any DealerTrack Participating
Customers.
4.6 Database Security, Privacy and Security Audits. Each Party will use
commercially reasonable efforts to maintain logically and physically
secure, monitored operational environments and systems for the processing
and storage of transaction and other Data pursuant to this Agreement, in
compliance with applicable regulatory requirements and Safety and
Soundness Report No. 70 ("SAS 70"), or a substantially equivalent
standard, including the maintenance of redundant firewall systems with
frequently updated firewall rule sets, virus and patch management, and the
monitoring of the systems, servers and firewalls for actual and attempted
intrusions. The Parties will comply in all material respects with the
Credit Bureau Report Providers' security requirements (including
encryption, limiting, and tracking database access, audit trails,
firewalls, etc.) and requirements for gaining access to and restricting
use of information received from Credit Bureau Report Providers. Upon
reasonable prior notice, each Party will provide to Credit Bureau Report
Providers reasonable access to its personnel and records for the purposes
of the conduct of a security audit of its procedures, controls, privacy
policies, compliance, and operations relating to the receipt, maintenance
and use of information provided by the Credit Bureau Report Provider.
Prior to the conduct of any security audit, the Credit Bureau Report
Provider or their designated agent that desires to conduct the audit will
be required to execute a Confidentiality Agreement in a form reasonably
acceptable to the Party being audited. CreditReportPlus will permit
DealerTrack to conduct a security audit in the event DealerTrack
reasonably believes or suspects that appropriate security procedures are
not in place, are inadequate, or may have been compromised with respect to
any transaction. DealerTrack will permit CreditReportPlus to conduct a
security audit of the DealerTrack System in the event CreditReportPlus
reasonably believes or suspects that appropriate security procedures are
not in place, are inadequate, or may have been compromised with respect to
any transaction. All security audits will be reasonably limited to an
examination of records, procedures, audit trails, access logs, policies,
operations, compliance, testing, and personnel involved in the conduct of
data flow, record maintenance, database access, and other persons within
the
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
19
organization (and any contractors or subcontractors involved) whose work
is reasonably relevant to the subject matter of the audit. The auditing
Party or Credit Bureau Report Provider, as applicable, will share its
findings with the Party being audited and the Party being audited will
make commercially reasonable efforts to rectify any material deficiencies
identified by the audit that the audited Party verifies to be continuing
and that provide a material risk to the audited Party's information
security.
4.7 Data. Each Party acknowledges and agrees that it will not store,
archive, copy or otherwise retain Credit Reports or any information
therein for non-CREDCO Products for any period in excess of the time
period stated in the applicable DealerTrack Credit Bureau Report Provider
Agreement or in the CreditReportPlus/Credit Bureau Report Provider
Agreements or as permitted by the applicable DealerTrack Dealer in
accordance with its agreements with its Credit Bureau Report Providers or
such other time period as the Parties may mutually agree. DealerTrack
agrees that it will not store, archive, copy or otherwise retain CREDCO
Products or any information therein for any period in excess of the time
period to which DealerTrack must adhere under the DealerTrack-CREDCO
Agreement. However, in the event either Party is compelled by legal
process to retain or disclose any Data, it will have the right to do so to
the extent necessary to comply with the legal process, provided that, if
permitted by Applicable Law, such Party will inform the other Party as
soon as reasonably possible prior to disclosing such Data.
4.8 Notices of Certain Software Modifications. In the event that either
Party makes any generally released modifications to such Party's Software,
and such modifications make changes to the other Party's System necessary
or advisable, the Party making the modifications shall give the other
Party notice of the modifications and the schedule for implementation of
such modifications shall be mutually agreed upon unless: (a) such
modification is necessary to comply with Applicable Law in which event the
modification will be made as soon as commercially practicable after the
provision of Applicable Law requiring the change becomes effective; and
(b) in the event the modification affects DealerTrack Financial
Institutions, the Parties acknowledge that DealerTrack is obligated to
give at least ninety (90) days notice of changes to certain DealerTrack
Financial Institutions of changes to the DealerTrack System and the
Parties will endeavor to implement changes to allow for at least a 90 -day
notice period wherever such changes affect a DealerTrack Financial
Institution and the 90-day notice period is commercially practicable.
(a) Subject to Sections 2.3 and 2.4, with respect to changes to
either Party's System which are deemed necessary by such Party, in such
Party's discretion: (a) DealerTrack shall be responsible, at its expense,
for making the necessary changes to the DealerTrack System; and (b)
CreditReportPlus shall be responsible, at its expense, for making the
necessary changes to the CreditReportPlus System. The Parties shall
establish a mutually agreeable schedule for making such changes properly
and in a timely manner.
(b) Subject to Sections 2.3 and 2.4, with respect to changes to a
Party's System which are deemed advisable, but not necessary by such Party
in its discretion, the
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
20
other Party shall not be required to implement changes to its System. If
the other Party elects to implement the changes, at such other Party's
expense, upon the request of the Party making the changes, the Parties
shall establish a mutually agreeable schedule for making such changes to
their respective Systems, with the objective of making such changes
properly and in a manner that allows both Parties to begin to utilize the
additional or changed functionality resulting from the changes within a
reasonable timeframe. The foregoing notwithstanding, neither Party shall
be responsible for any interruption in the other Party's use of the
DealerTrack/CreditReportPlus Interface prior to the other Party's
implementation of the appropriate changes to the other Party's System or
caused by the other Party's failure to implement the appropriate changes
to the other Party's System. If the other Party elects not to implement
the changes, the Party initiating the change shall not be responsible for
the inability of the other Party to utilize additional or changed
functionality of the initiating Party's System or
DealerTrack/CreditReportPlus Interface that would be available with such
changes.
4.9 Permissible Purpose for Credit Reports; Compliance with Applicable
Law. In order to receive Credit Reports, each DealerTrack Participating
Customer must have and continue to have, a permissible purpose under
Applicable Law. CreditReportPlus and DealerTrack agree that
CreditReportPlus' and DealerTrack's marketing and other communications to
prospective and actual DealerTrack Participating Customers will accurately
reflect these requirements, if applicable. To the extent that DealerTrack
or CreditReportPlus distributes marketing or other communications to
prospective and actual DealerTrack Participating Customers, such material
and communications will comply with Applicable Law. CreditReportPlus
represents, warrants and covenants to DealerTrack, and DealerTrack
represents, warrants and covenants to CreditReportPlus that its
performance of this Agreement will at all times comply with Applicable
Law. CreditReportPlus and DealerTrack will each be responsible for its own
compliance with all Applicable Law affecting its performance of this
Agreement. Without limiting the generality of the foregoing,
CreditReportPlus will be liable to DealerTrack for all materials and
information it provides to DealerTrack being in full compliance with
Applicable Law. Without limiting the generality of the foregoing,
DealerTrack will be liable to CreditReportPlus for all materials and
information it provides to CreditReportPlus being in full compliance with
Applicable Law.
4.10 Customer Service. During a DealerTrack Outage Period or a
CreditReportPlus Outage Period, the Party not experiencing the Outage will
use commercially reasonable efforts to handle all customer service. Other
than during such Outages, customer service responsibilities for
DealerTrack Participating Customers will be assigned based on the
DealerTrack Participating Customer's mode of accessing Credit Reports.
CreditReportPlus will have the responsibility to provide customer service
to DealerTrack Participating Customers that use Subscriber Codes generated
as a result of CreditReportPlus/Credit Bureau Report Provider Agreements
with TransUnion, Equifax, or Experian, other than Dealers that are
Enterprise Dealers. CreditReportPlus will also provide customer service to
DealerTrack Participating Customers that use CREDCO Subscriber Codes for
accessing Credit Reports. DealerTrack will provide customer service to
DealerTrack Participating Customers that use CreditCheck Products, a
Direct
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
21
Credit Bureau Report Provider Connection or an Enterprise Subscriber Code.
DealerTrack Participating Customers that switch their modes from their
original modes of accessing Credit Bureaus will be provided customer
service by the Party responsible for the mode relied upon by the
DealerTrack Participating Customer at the time of the needed service. All
customer service will meet the performance standards set forth in the
Service Level Agreement which the Parties will execute as of even date
herewith. Without limiting the generality of the foregoing, the Party
responsible for customer service will facilitate entry of the applicable
Subscriber Codes into the DealerTrack System for DealerTrack Participating
Customers that desire the Base Functionality or the Enhanced Base
Functionality. For DealerTrack Participating Customers that switch their
Credit Bureau Report Provider relationship, the new Party responsible for
customer service will facilitate entry of the applicable Subscriber Codes
into the DealerTrack System for DealerTrack Participating Customers that
desire the Base Functionality or the Enhanced Base Functionality. To
establish a new relationship or change the existing Subscriber Code, the
Party responsible for customer service will first obtain the DealerTrack
Participating Customer's written directive to sign-up or switch on a form
approved by DealerTrack and CreditReportPlus. Upon doing so, the
responsible Party will make the appropriate change in the DealerTrack
Participating Customer's Subscriber Code to DealerTrack's System. If
CreditReportPlus is the Party making the change, CreditReportPlus will
advise DealerTrack of each DealerTrack Participating Customer change on a
daily basis. If DealerTrack is the Party making the change, DealerTrack
will advise CreditReportPlus of each DealerTrack Participating Customer
change on a daily basis. DealerTrack will have the right to override any
Subscriber Code entered by CreditReportPlus if it is requested by the
DealerTrack Participating Customer in writing to do so or for other good
cause shown. In such event, DealerTrack will advise CreditReportPlus of
the override within one (1) business day.
4.11 Telecommunications. The Parties will each be responsible for their
individual fees and charges incurred in connection with telecommunications
between the Parties. However, the Parties will mutually agree upon the
actual method of telecommunication.
4.12 DealerTrack/CreditReportPlus Interface. With respect to the
development of the DealerTrack/CreditReportPlus Interface, DealerTrack and
CreditReportPlus shall perform their respective responsibilities as set
forth in this Section 4.12.
(a) The Parties shall consult with each other on a continuing basis
and as reasonably necessary to finalize a time-line for performance of the
respective responsibilities of each Party relating to the development of
the DealerTrack/CreditReportPlus Interface, which may be documented in one
or more Interface Development Schedules, with the objective of finalizing
such time-lines as soon as is commercially practicable. The Parties shall
schedule the dates for completion of such responsibilities. Both Parties
shall proceed with their respective responsibilities as set forth in each
Interface Development Schedule in a diligent manner and shall use
commercially reasonable efforts to allocate such skilled personnel and
other resources to the project as shall be necessary to complete the
development of the Interface in accordance with the Interface Development
Schedule.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
22
(b) DealerTrack and CreditReportPlus shall cooperate reasonably and
in good faith with respect to such issues that may arise from time to time
in connection with the development of the DealerTrack/CreditReportPlus
Interface, to the extent that specific responsibility has not been
designated to one Party or the other in this Agreement.
4.13 Maintenance Support. The Parties will provide support to each other
in maintaining the DealerTrack/CreditReportPlus Interface as set forth in
the Service Level Agreement. The Service Level Agreement may be modified
by the Parties from time to time by mutual written agreement and each
Party will at all times maintain at least the minimum service level
standards set forth in the Service Level Agreement.
4.14 Canada. The Parties will negotiate in good faith during the initial
12-month period of the Term in an effort to reach a mutually acceptable
arrangement for the development of a service arrangement similar to that
provided herein with respect to Dealers and Credit Report transactions in
Canada. However, neither Party will be obligated to enter into such an
arrangement. In addition, either Party may negotiate, request, or require
terms different for any location outside of the Territory, including
Canada.
4.15 Mutual Consent to Receive Unsolicited Facsimile Advertisements. Each
Party consents to receiving unsolicited advertisements by facsimile from
the other Party at the following facsimile numbers. For DealerTrack:
(until February 28, 2005) - 000-000-0000; on or after February 28, 2005 at
a facsimile number to be provided on or prior to such time. For
CreditReportPlus (until November 15, 2004) - 000-000-0000; on or after
November 15, 2004 at a facsimile number to be provided on or prior to such
time.
5. Marketing Activities.
5.1 Promotional and User Materials. CreditReportPlus will provide
reasonable assistance to DealerTrack in developing and producing material
promoting the CreditReportPlus Service, including providing materials that
DealerTrack may use to develop a User manual. However, CreditReportPlus
acknowledges that DealerTrack is and will continue to be obligated under
contractual provisions, as of the Effective Date, which restrict its
ability to market or promote the CreditReportPlus Service to certain
Dealers. Nothing contained in this Agreement will require DealerTrack to
market the CreditReportPlus Service or take any other action that
DealerTrack determines may constitute a breach of any such obligations.
5.2 Name Usage. DealerTrack will not publish, distribute, or otherwise
release any written materials mentioning CreditReportPlus by name or
concerning the CreditReportPlus Service (other than materials prepared by
CreditReportPlus) to prospective or actual DealerTrack Participating
Customers without CreditReportPlus' prior approval provided, however, that
DealerTrack will have the ability to mention in promotional materials that
the CreditReportPlus Service is available through the DealerTrack System.
CreditReportPlus will not publish, distribute, or otherwise release any
written materials mentioning DealerTrack by name or concerning the
DealerTrack
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
23
System (other than materials prepared by DealerTrack) to prospective or
actual CreditReportPlus Customers without DealerTrack's prior approval;
provided, however, that CreditReportPlus will have the ability to mention
in promotional materials that the CreditReportPlus Service is available on
the DealerTrack System. Notwithstanding the foregoing, each Party will
have the right to withdraw any approvals granted by it under this Section
5.2, and/or the other Party's ability to mention its name under this
Section, as it determines to be reasonably necessary to protect its
goodwill, reputation or Intellectual Property rights.
5.3 Reporting. The Parties will mutually agree as to the type and content
of reporting required under this Agreement and the frequency and method of
distributing such reports. Such reports may include: (a) monthly activity
reports summarizing transaction counts by DealerTrack Participating Dealer
by date; (b) periodic reports containing enough information to determine
the Converted Dealer Tier 1 Volume and Converted Dealer Tier 2 Volume; and
(c) mutually acceptable reports to enable CreditReportPlus to increase
Credit Report utilization on the DealerTrack Service. All activity reports
will be deemed Confidential Information of the Parties, any list of
DealerTrack Dealers is Confidential Information of DealerTrack, and any
list of CreditReportPlus Advanced Functionality Customers is Confidential
Information of CreditReportPlus. In each case, such Confidential
Information is subject to Section 12 of this Agreement.
6. Compensation.
6.1 CREDCO, CreditMaster and CreditCheck Compensation. For the avoidance
of doubt, the Parties herein acknowledge and agree that the
DealerTrack-ADP Agreement will govern compensation to DealerTrack
Companies for the delivery of CreditCheck Products to DealerTrack
Participating Customers using the CreditCheck Products and that the
DealerTrack-CREDCO Agreement will govern compensation to the DealerTrack
Companies for the delivery of CREDCO Products and CreditMaster Products to
the DealerTrack Participating Customers using the CREDCO Products or
CreditMaster Products. The Parties also acknowledge that DealerTrack will
maintain agreements with other Credit Bureau Report Providers for the
purposes permitted by Section 3.1 of this Agreement.
6.2 Repository Compensation
(a) CreditReportPlus will pay DealerTrack a fee calculated as fifty
percent (50%) of the Credit Bureau Report Provider Fee per Tier 2 Credit
Report calculated and payable on a monthly basis for the period commencing
on the date hereof and continuing on a monthly basis for a period through
and including December, 2004. Such fee will be payable in monthly
installments in accordance with the payment terms in Section 6.4 but the
totality of such monthly payments will constitute but one fee due under
this Agreement for which DealerTrack's rights will be earned as of the
Effective Date.
(b) For each Credit Report that is transmitted to a DealerTrack
Participating Customer through the DealerTrack System subject to a
CreditReportPlus/Credit Bureau
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
24
Report Provider Agreement ("Credit Report Transmission") during each
calendar month of the Term:
(i) CreditReportPlus will pay DealerTrack one hundred percent
(100%) of the Credit Bureau Report Provider Fee for the Tier 1 Credit
Reports each month; and
(ii) CreditReportPlus will pay DealerTrack fifty percent (50%)
of the Credit Bureau Report Provider Fee for the Credit Reports in excess
of the Tier 1 Credit Reports each month.
(c) For each Credit Report Transmission using any Enhanced Base
Functionality for which CreditReportPlus receives any fee (including any
fee from a Dealer for access to the CreditReportPlus System or any
per-Credit Report fee paid by the Dealer to CreditReportPlus),
CreditReportPlus will pay DealerTrack fifty percent (50%) of the fee for
that Enhanced Base Functionality. For each Credit Report Transmission
using any Base Functionality or Enhanced Base Functionality for which
DealerTrack receives any fee from an entity other than CreditReportPlus
(including any fee from a Dealer for access to the CreditReportPlus System
or any per-Credit Report fee paid by the Dealer to DealerTrack),
DealerTrack will pay CreditReportPlus fifty percent (50%) of the fee for
that Base Functionality or Enhanced Base Functionality, but no part of any
fee for DealerTrack Enhanced Base Functionality.
(d) Notwithstanding Section 6.2(b), in the event a Credit Bureau
Report Provider pays DealerTrack for a Credit Report transmitted through
the DealerTrack System using the DealerTrack/CreditReportPlus Interface,
DealerTrack will remit the amount thereof in excess of the amount of such
Credit Bureau Report Provider Fee owing to DealerTrack under this
Agreement.
6.3 Advanced Functionality Subscription Fees. CreditReportPlus may, in its
sole discretion, charge CreditReportPlus Customers for their subscription
to Advanced Functionality pursuant to separate contracts between
CreditReportPlus and CreditReportPlus Customers. Subject to Section 2.4,
CreditReportPlus, in its sole discretion will determine the fees
CreditReportPlus Customers will be charged for the Advanced Functionality.
CreditReportPlus shall retain 100% of the Advanced Functionality
subscription fees. In the event DealerTrack and CreditReportPlus mutually
agree that DealerTrack shall sell Advanced Functionality to DealerTrack
Participating Customers, the Parties will mutually agree on the
compensation to DealerTrack for such activity.
6.4 DealerTrack Enhanced Base Functionality Fees. DealerTrack may, in its
sole discretion, charge DealerTrack Participating Customers for their
subscription to DealerTrack Enhanced Base Functionality pursuant to
separate contracts between DealerTrack and DealerTrack Participating
Customers. DealerTrack, in its sole discretion will determine the fees
DealerTrack Participating Customers will be charged for the DealerTrack
Enhanced Base Functionality. DealerTrack shall retain 100% of the
DealerTrack Enhanced Base Functionality subscription fees.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
25
6.5 Payments and Payment Terms.
(a) CreditReportPlus will remit to DealerTrack all amounts due and
payable by CreditReportPlus to DealerTrack pursuant to Section 6 of this
Agreement ("DealerTrack Fees") within five (5) business days following the
actual day fees are received by CreditReportPlus from the applicable
Credit Bureau Report Provider and within five (5) business days following
the end of the calendar month in which the actual fees are received by
CreditReportPlus from Dealers. CreditReportPlus will diligently pursue
collection of all amounts due from Credit Bureau Report Providers and
Dealers if such amounts are not paid on the due dates stated in their
respective agreements. If any act or omission of CreditReportPlus provides
an offset or credit to a sum otherwise owing from a Credit Bureau Report
Provider or Dealer to CreditReportPlus, CreditReportPlus will pay
DealerTrack as if such offset or credit did not exist. If a Credit Bureau
Report Provider refunds or reverses a fee with respect to which
CreditReportPlus has paid a DealerTrack Fee, CreditReportPlus will have
the right to make appropriate adjustments to subsequent DealerTrack Fees.
If CreditReportPlus fails to pay any amount due within the period
referenced above, late charges assessed at the lesser of 1 1/2% per month,
or the maximum amount permissible by Applicable Law will also become due
and payable from the due date through and including the date of payment.
For this purpose, sums paid by CreditReportPlus to DealerTrack will be
applied first to outstanding late charges, and then to monthly amounts
owing but not paid. DealerTrack's assessment or collection of late charges
will be without prejudice or limitation to any other rights and remedies
of DealerTrack under this Agreement or pursuant to Applicable Law.
(b) DealerTrack will remit to CreditReportPlus all amounts due and payable
by DealerTrack to CreditReportPlus pursuant to Section 6 of this Agreement
("CreditReportPlus Fees") within five (5) business days following the
actual day fees are received by DealerTrack from the applicable Credit
Bureau Report Provider and within five (5) business days following the end
of the calendar month in which the actual fees are received by DealerTrack
from Dealers. DealerTrack will diligently pursue collection of all amounts
due from Credit Bureau Report Providers and Dealers if such amounts are
not paid on the due dates stated in their respective agreements. If any
act or omission of DealerTrack provides an offset or credit to a sum
otherwise owing from a Credit Bureau Report Provider or Dealer to
DealerTrack, DealerTrack will pay CreditReportPlus as if such offset or
credit did not exist. If a Credit Bureau Report Provider refunds or
reverses a fee with respect to which DealerTrack has paid a
CreditReportPlus Fee, DealerTrack will have the right to make appropriate
adjustments to subsequent CreditReportPlus Fees. If DealerTrack fails to
pay any amount due within the period referenced above, late charges
assessed at the lesser of 1 1/2% per month, or the maximum amount
permissible by Applicable Law will also become due and payable from the
due date through and including the date of payment. For this purpose, sums
paid by DealerTrack to CreditReportPlus will be applied first to
outstanding late charges, and then to monthly amounts owing but not paid.
CreditReportPlus' assessment or collection of late charges will be without
prejudice or limitation to any other rights and remedies of
CreditReportPlus under this Agreement or pursuant to Applicable Law.
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
26
7. Staffing and Resources.
7.1 Project Manager. Not later than ten (10) calendar days after the
Execution Date, each Party will designate one person and one alternate to
serve as its "Project Manager" with respect to implementing this
Agreement. The Project Manager will have sufficient knowledge and
authority to implement this Agreement. Either Party may change its Project
Manager or the alternate at any time by giving notice to the other Party.
In the event either Party is dissatisfied with the other Party's Project
Manager for good cause shown, the other Party will replace the Project
Manager with an acceptable substitute within a reasonable period of time,
not to exceed sixty (60) calendar days from request of the other Party,
unless the other Party consents to a longer period of time.
7.2 Staffing and Resources. At all times during the Term, each Party will
be responsible for dedicating appropriate and sufficient staffing and
resources to meet its obligations under this Agreement.
8. Term and Termination.
8.1 Term and Termination for Lapse of Time. The term of this Agreement
will begin on the Effective Date, and will continue through and including
March 19, 2010 (the "Initial Term") unless sooner terminated as provided
below. Upon expiration of the Initial Term, unless terminated by either
Party by notice of non-renewal given not less than one hundred and eighty
(180) calendar days prior to the expiration of the Initial Term, this
Agreement will automatically renew for successive one (1) year terms (each
a "Renewal Term") without further action by either Party. During any
Renewal Term, either Party may terminate this Agreement, effective at the
end of such Renewal Term, by notice of termination given not less than one
hundred and eighty (180) calendar days prior to the expiration of such
Renewal Term. The "Term" of this Agreement includes the Initial Term and
any subsequent Renewal Terms.
8.2 DealerTrack's Right of Termination for Cause. This Agreement may be
terminated immediately by DealerTrack for cause by notice to
CreditReportPlus upon the occurrence of any of the following events: (a)
if CreditReportPlus ceases to do business, or otherwise terminates its
business operations; (b) if CreditReportPlus fails to promptly secure or
renew any material license, registration, permit, authorization, or
approval for the conduct of its business in the manner contemplated by
this Agreement, or if any necessary license, registration, permit,
authorization, or approval is revoked or suspended and not reinstated
within thirty (30) calendar days of such revocation or suspension; (c) if
CreditReportPlus breaches any material provision of this Agreement and
fails to fully cure such breach within thirty (30) calendar days of notice
describing the breach; (d) if CreditReportPlus becomes insolvent, or seeks
protection under any bankruptcy, receivership, trustee, creditor's
arrangement composition, or comparable state or federal proceeding, or if
any such proceeding is instituted against CreditReportPlus and is not
dismissed within thirty (30) calendar days of its commencement; (e) in the
event of termination of the DealerTrack-CREDCO Agreement; (f) in the
circumstances described in Sections 2.1, 2.8, and 11 of this Agreement; or
(g) in the event Control of CreditReportPlus is transferred to an entity
other than a current Affiliate of The First
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
27
American Corporation. If First American Corporation is going to transfer
Control of CreditReportPlus to an Affiliate other than a current Affiliate
of The First American Corporation, First American must first obtain the
approval of DealerTrack.
8.3 CreditReportPlus' Right of Termination for Cause. This Agreement may
be terminated immediately by CreditReportPlus for cause by notice to the
DealerTrack upon the occurrence of any of the following events: (a) if
DealerTrack ceases to do business, or otherwise terminates its business
operations; (b) if DealerTrack fails to promptly secure or renew any
material license, registration, permit, authorization, or approval for the
conduct of its business in the manner contemplated by this Agreement, or
if any necessary license, registration, permit, authorization, or approval
is revoked or suspended and not reinstated within thirty (30) calendar
days of such revocation or suspension; (c) if DealerTrack breaches any
material provision of this Agreement and fails to fully cure such breach
within 30 calendar days of notice describing the breach; (d) if
DealerTrack becomes insolvent, or seeks protection under any bankruptcy,
receivership, trustee, creditor's arrangement composition or comparable
state or federal proceeding, or if any such proceeding is instituted
against DealerTrack and is not dismissed within thirty (30) calendar days
of its commencement; or (e) in the circumstances described in Sections 3.2
or 11 of this Agreement.
8.4 Termination Right for Non-Use by Dealers. Notwithstanding anything to
the contrary in this Agreement, after the Live Production Date, this
Agreement will automatically terminate if during the Initial Term or any
Renewal Term there are no DealerTrack Participating Customers using the
DealerTrack/CreditReportPlus Interface to access the CreditReportPlus
Service for a period of ninety (90) calendar days.
8.5 Wind-Down. Upon any termination of this Agreement for any reason, the
Parties will mutually cooperate to effectuate a seamless conversion of
systems and operations from the CreditReportPlus System to the DealerTrack
System with minimal disruption to DealerTrack Participating Customers.
During such time, each Party will maintain the operation of its System and
DealerTrack will provide the DealerTrack Services and CreditReportPlus
will provide the CreditReportPlus Services to DealerTrack Participating
Customers on the terms provided for in this Agreement and each Party will
continue to make improvements and enhancements to the same degree as
during the Term. Each DealerTrack Participating Customer will retain the
right to use the Advanced Functionality pursuant to the terms of its
agreement to do so until the earlier of: (a) the scheduled expiration of
the Dealer's agreement for Advanced Functionality; (b) such time as
DealerTrack converts the DealerTrack Participating Customer to an
alternative system; or (c) one year from the termination of this Agreement
(the "Wind-Down Period"). During such time, each Party will continue to
have a license under Section 9 to interface with the other Party's System
and each Party will otherwise operate as if this Agreement were still in
effect. During the Wind-Down Period, each Party shall maintain and make
enhancements to the operation of the DealerTrack/CreditReportPlus
Interface and CreditReportPlus will provide the CreditReportPlus Service
to DealerTrack Participating Dealers upon the terms stated herein. In
addition, upon termination of this Agreement, the Parties will have the
duties set forth in Section 12.6 regarding the return
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
28
or destruction of Confidential Information. The Sections identified in
Section 17.9 of this Agreement will survive termination of this Agreement.
9. Licenses; Proprietary Rights
9.1 Reciprocal Licenses in Confidential Information. In accordance with
the terms of this Agreement and for the Term, the Parties agree to provide
each other with a non-exclusive and non-transferable, license to use the
Confidential Information provided by the other Party in any Systems
Specifications document for the sole purpose of providing integration
support for DealerTrack Participating Customers and the CreditReportPlus
Service and otherwise complying with the provisions of this Agreement.
Neither Party will make any changes or modifications to the other's
System, nor any Systems Specifications document, except as directed and
approved by both Parties in writing.
9.2 Reciprocal Licenses in Marks. In accordance with the terms of this
Agreement and for the Term, each Party grants the other a non-exclusive
and non-transferable license to use the other Party's Marks for the sole
purposes of: (a) identifying that the Party has access to the other
Party's System through the DealerTrack/CreditReportPlus Interface (whether
in print, electronically or otherwise); and (b) performing its obligations
under this Agreement.
9.3 Acknowledgement of Rights in Property. The Parties understand and
agree that each is the exclusive owner of, holds and will retain, all
right, title, and interest in and to their respective Confidential
Information, Intellectual Property, Software, Systems, and any other
equipment, software, hardware, materials, or information provided by that
Party, including any enhancements, upgrades, improvements, changes,
modifications, revisions, or derivative works made to the same from time
to time and all versions, and any enhancements conceived, made, or
implemented during all phases of development including any enhancements
suggested by one of the Parties or its Users (the "Property"), and the
other Party will have no ownership or use rights in that Property, except
as set forth in this Agreement. The Parties agree that upon the other
Party's request and at the requesting Party's expense, to assign to the
requesting Party in writing any proprietary interest that may be conferred
upon that Party by law in any such enhancements, upgrades, improvements,
changes, revisions, modifications, and derivative works to the requesting
Party's Property.
9.4 Prohibited Uses of Property. Notwithstanding anything to the contrary
in this Agreement, no Party will use the other Party's Property in a
manner that it knows or reasonably believes: (a) disparages the other
Party, its products or services; or (b) portrays the other Party, its
products or services in a false or poor light. However, at the owner's
written request, the other Party will promptly alter or discontinue any
particular use of that Party's Property, as applicable and, if the other
Party does so as soon as commercially practicable, such use will not be
deemed a default of this Agreement.
9.5 No Alteration of Reverse Engineering of Property. Except as expressly
permitted under this Agreement, the Parties agree that they will not, and
will not permit any User, customer or Third Party to, at any time, without
written permission of the other Party, to
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
29
copy, duplicate, decompile, disassemble, or reverse engineer any software
component of the other Party for any reason, including, to develop
functionally similar computer software or services, or modify, alter, or
delete any of the copyright notices embedded in or affixed to the copies
of any components of the other Party.
9.6 Third Party Software. If and to the extent that a Party incorporates
the software of any Third Party in their System or software, the license
to such Third Party software will be defined and limited by the license to
that Party by such Third Party. The Parties specifically acknowledge that
the licensors of such Third Party software will retain all ownership
rights thereto, and the Parties agree that it will not, and will not
permit any User, customer, or Third Party to: (a) decompile, disassemble
or reverse engineer such Third Party software or otherwise use such Third
Party software for any reason except as expressly permitted in this
Agreement; (b) reproduce the software for purposes other than those
specifically permitted under this Agreement; or (c) modify, alter, or
delete any of the copyright notices embedded in or affixed to such third
Party software.
10. Mutual Representations, Warranties and Covenants.
10.1 Mutual Representations and Warranties. As of the date of this
Agreement, DealerTrack represents and warrants to CreditReportPlus, and
CreditReportPlus represents and warrants to DealerTrack that:
(a) It is a duly organized and a validly existing corporation that is
qualified and licensed in all states where it is necessary for the
transaction of its business;
(b) It has the requisite power, authority, and legal right to execute and
deliver this Agreement, and perform and observe the terms and conditions
of this Agreement. The person signing this Agreement has full power and
authority to bind the Party it represents. The execution, delivery, and
performance of this Agreement have been duly authorized by all necessary
and appropriate corporate actions on the part of the Party. No consent,
approval, authorization or order of, registration or filing with, or
notice to any governmental authority or court is required under Applicable
Law to effectuate the execution, delivery, and performance by the Party of
this Agreement;
(c) This Agreement has been duly authorized and executed by each Party and
this Agreement is valid, binding and enforceable against each Party in
accordance with its terms, except that such enforcement may be subject to
bankruptcy or other similar laws or by general principles of equity. The
execution, delivery, and performance by each Party of this Agreement does
not conflict with any term or provision of: (i) its certificate of
incorporation or by-laws; (ii) any material law, rule, regulation, order,
judgment, writ, injunction, or decree of any court, regulatory body,
administrative agency, or governmental body having jurisdiction as now or
as may become effective over either Party, including but not limited to
Applicable Law; or (iii) any agreement to which a Party is a Party or by
which its property is bound;
(d) There is no action, proceeding, or investigation pending or, to the
best knowledge of each Party, threatened against it, before any court,
administrative agency,
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
30
or other tribunal which could reasonably be expected to materially and
adversely affect the other Party's performance of its obligations under,
or the validity or enforceability of, this Agreement; and
(e) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 10.1 ARE THE
ONLY WARRANTIES MADE BY THE PARTIES TO EACH OTHER. THE WARRANTIES ARE IN
LIEU OF, AND EACH PARTY EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR FITNESS FOR
SECURITIZATION OR OTHER SECONDARY FINANCING TRANSACTIONS. WITHOUT LIMITING
THE GENERALITY OF THE FOREGOING, THE PARTIES SPECIFICALLY DISCLAIM ANY
REPRESENTATION OR WARRANTY: (i) THAT THEIR SYSTEM AND SERVICES, WILL
PERFORM WITHOUT INTERRUPTION OR BE ERROR-FREE; (ii) THAT THEIR SERVICE
MEETS THE OTHER PARTY'S REQUIREMENTS; OR (iii) THAT ANY OR ALL OF THE DATA
PROVIDED THROUGH THE DEALERTRACK/CREDITREPORTPLUS INTERFACE IS ACCURATE,
UP-TO-DATE, OR COMPLETE. ALL DATA AND INFORMATION PROVIDED THROUGH THE
DEALERTRACK/CREDITREPORTPLUS INTERFACE IS PROVIDED ON AN "AS IS," "AS
AVAILABLE" BASIS, WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND.
10.2 Fees. Except as otherwise set forth in this Agreement, each Party
covenants and agrees that it will not, without the prior consent of the
other Party, charge any fees to any DealerTrack Participating Customers
for access to Credit Reports using the DealerTrack/CreditReportPlus
Interface, provided that nothing contained herein will prohibit
DealerTrack from charging fees to any DealerTrack Participating Customers
for any DealerTrack Services other than access to Credit Reports.
Notwithstanding the foregoing, nothing in this Section 10.2 shall prohibit
CreditReportPlus from charging DealerTrack Participating Customers for
Advanced Functionality and nothing in this Section 10.2 shall prohibit
DealerTrack from charging DealerTrack Participating Customers for reports
containing information derived from Credit Reports in combination with
information other than Credit Report information.
10.3 Mutual Covenants. Each Party covenants, and agrees on a continuing
basis as follows during the Term:
(a) That the Party has and will maintain all regulatory approvals,
authorizations, licenses, permits, and other permissions, consents, and
authorities needed to perform its obligations under this Agreement;
(b) In connection with carrying out its obligations contained in this
Agreement, the Party will comply at all times with all Applicable Law;
(c) That each Party's use of any material, product or other aspect of any
technology or Intellectual Property will not infringe on or violate any
U.S. patent; copyright; trade
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
31
secret; trademark; or other proprietary right of any Third Party, or be
libelous, defamatory or illegal;
(d) It will accurately and completely transmit Data (i) to the other
Party, and (ii) to DealerTrack Participating Customers for all Data that
such Party transmits directly to DealerTrack Participating Customers; and
(e) It will use commercially reasonable means to protect the security of
Credit Bureau Report Providers' Subscriber Codes and passwords and it will
not provide such codes and passwords to Third Parties.
11. Infringement Claims of Third Parties.
Notwithstanding anything to the contrary in this Agreement, if any aspect
of a Party's Intellectual Property, that is necessary for meeting that
Party's or the other Party's obligations under this Agreement, becomes, or
is likely to become, subject to a claim of infringement, that Party, at
its option and its expense, will either: (a) procure for the other Party,
a license or a right to continue using the Intellectual Property; or (b)
modify the Intellectual Property to make it non-infringing but not
materially impair its functionality. If neither of the foregoing two
options is reasonably available, then either Party may terminate this
Agreement by notice to other Party. Except for the indemnity obligations
set forth in Section 13 below, the foregoing will be the Parties' sole and
exclusive remedy with respect to any infringement claims relating to
Intellectual Property.
12. Confidentiality.
12.1 Confidential Information. For the purposes of this Agreement,
"Confidential Information" means information which, during the Term is
revealed by or through a Party (a "Disclosing Party") to the other (a
"Receiving Party") and:
(a) If it is disclosed in writing, is marked "confidential" or
proprietary" or with another similar marking;
(b) If it is not disclosed in writing, then at the time of disclosure is
identified by the Disclosing Party as confidential or proprietary;
(c) If the information includes the database schema, technical
requirements, operation or performance of a Party's System;
(d) If the type of the information is financial, strategic business,
scientific, technical, economic, or engineering information including,
patterns, plans, compilations, customer lists, program devices, formulas,
designs, prototypes, methods, techniques, processes, procedures, programs,
or codes, whether tangible or intangible, and whether or how stored,
compiled, or memorialized physically, electronically, graphically,
photographically, or in writing;
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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(e) If the information is traditionally recognized as proprietary, trade
secret or reasonably understood to be confidential; and
(f) The terms of this Agreement are Confidential Information of both
Parties.
12.2 Non-Confidential Information. Confidential Information does not
include information which:
(a) Prior to disclosure to the Receiving Party by the Disclosing Party was
known by the Receiving Party free of any confidentially obligation to the
Disclosing Party;
(b) Is publicly available through no fault of the Receiving Party;
(c) Is developed by the Receiving Party without use of the Disclosing
Party's Confidential Information and without breach of a confidentiality
obligation owed to Disclosing Party and outside the scope of any agreement
with Disclosing Party;
(d) Is disclosed to the Receiving Party by a Third Party not known by the
Receiving Party after reasonable investigation to be under any
confidentially obligation to the Disclosing Party; or
(e) For DealerTrack only, information that DealerTrack provides to
CreditReportPlus that consists of customer information of a DealerTrack
Dealer that is provided to DealerTrack by such Dealer.
12.3 Consumer Information. To the extent permitted by Applicable Law, each
Party's Credit Bureau Report Provider agreements and in accordance with
the terms and conditions of the CreditReportPlus/Credit Bureau Report
Provider Agreements that DealerTrack approved pursuant to Section 2.1,
each Party may compile, use, and disclose any Confidential Information and
Data in the aggregate; provided, however, that any such use does not
contain any nonpublic personal information identifying any individual
entity, consumer, or customer without such person or entities' consent.
For purposes of this subsection, the term "consumer" and "nonpublic
personal information" have the meanings set forth in Section 509 of the
Xxxxx-Xxxxx-Xxxxxx Act (P.L. 106-102) (15 U.S.C. Section 6809) and its
implementing regulations.
12.4 Treatment of Confidential Information. The Receiving Party will treat
Confidential Information of the other Party as strictly confidential with
at least the same degree of care as the Receiving Party uses for its own
Confidential Information of similar importance, and in no event less than
a reasonable degree of care. Except as permitted by Section 12.5, the
Receiving Party will not reveal Confidential Information to any Third
Party. The Receiving Party will not use, duplicate, copy, transmit, or
otherwise disseminate or permit to be used, duplicated, copied,
transmitted, or otherwise disseminated the Confidential Information of the
other Party at any time prior to or after the termination of this
Agreement, except as expressly permitted under this Agreement. Except as
expressly provided in this Agreement, the Receiving Party may not use
Confidential Information for its own benefit or that of any Third Party,
nor will the
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33
Receiving Party use Confidential Information to the Disclosing Party's
detriment. The Receiving Party will use Confidential Information for the
purposes authorized by this Agreement and for no other purpose. The
Receiving Party will promptly notify the Disclosing Party in writing of
any unauthorized use or disclosure of, and any unauthorized access to, any
Confidential Information.
12.5 Disclosure to Employees, Agents and Third Parties. A Receiving Party
will not disclose Confidential Information of the Disclosing Party to its
employees, Users, and independent contractors acting as the Receiving
Party's agent unless such persons have agreed in writing to comply with
the Confidential Information requirements of this Agreement and they need
to know the Confidential Information in order to implement this Agreement.
The Receiving Party will be liable for the wrongful actions of such
individuals in their use or disclosure of the Confidential Information.
Neither Party will otherwise disclose Confidential Information to any
Third Party unless: (a) required by a federal or state court or
governmental agency; (b) required by Applicable Law, including, but not
limited to, responding to a subpoena; (c) on a "need-to-know" basis under
an obligation of confidentiality to its legal counsel, accountants, banks
and other financing sources, investment bankers and other DealerTrack
advisors; or (d) in connection with any securities filing or to comply
with disclosure requirements of laws applicable to corporate governance or
compliance. If the Receiving Party is required to disclose Confidential
Information under subsection (a) or (b) of this Section 12.5, the
Receiving Party will promptly give the Disclosing Party notice before the
disclosure of Confidential Information within enough time for the
Disclosing Party to seek to protect its proprietary interest in the
Confidential Information. The Receiving Party will use commercially
reasonable efforts to minimize disclosures under this Section 12 and will
consult with and assist the Disclosing Party in obtaining a protective
order prior to disclosure if one is sought.
12.6 Return of Confidential Information. Upon termination or expiration of
this Agreement each Party will promptly destroy or return all of the other
Party's Confidential Information, including, but not limited to any copies
or partial copies regardless of their media or format, and certify in
writing to the other Party that it has done so; provided, however, that
the Receiving Party will not be required to retrieve Confidential
Information given to a court or governmental agency having jurisdiction
over the Receiving Party or Confidential Information it is required to
maintain pursuant to Applicable Law and each Party will be permitted to
retain a reasonable number of copies of Confidential Information processed
through its System for archival purposes in accordance with the terms and
conditions of the CreditReportPlus/Credit Bureau Report Provider
Agreements that DealerTrack approved pursuant to Section 2.1.
13. Indemnification.
13.1 Defense and Indemnity Obligations. Each Party ("Indemnifying Party")
agrees to indemnify, defend, and hold harmless the other Party its parent,
Affiliates, subsidiaries, directors, officers, employees, and agents
(collectively the "Indemnified Party"), from and against any and all
claims, demands, actions, suits, losses, liabilities, damages,
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
34
injuries, fines, penalties, costs, and expenses including, reasonable
attorneys' fees and court costs (including expert fees), asserted by a
Third Party (each, a "Claim"), arising, directly or indirectly, from or in
connection with:
(a) A breach of any representation, warranty, covenant or other obligation
set forth in this Agreement by the Indemnifying Party;
(b) Gross negligence or willful or wanton behavior by the Indemnifying
Party of its obligations under this Agreement.
13.2 Notice and Cooperation. As a condition to the indemnification
described in Section 13.1(a) above, the Party seeking indemnification must
provide the Indemnifying Party with prompt notice of the Claim for which
it seeks indemnification, and reasonably cooperate in the defense and
allow the Indemnifying Party sole control of the defense as long as the
Indemnifying Party diligently conducts such defense. No compromise or
settlement of such Claims may be effected by the Indemnifying Party
without the Indemnified Party's consent unless: (a) there is no finding or
admission of any violation of law or any violation of the rights of any
person and no effect on any other Claims that may be made against the
Indemnified Party; and (b) the Indemnified Party will have no liability
with respect to the compromise or settlement.
14. Limitation Of Liability.
14.1 CERTAIN DAMAGES NOT RECOVERABLE. EXCEPT FOR THE PARTIES' INDEMNITY
OBLIGATIONS SET FORTH IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION, OR COVER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THIS LIMITATION WILL
NOT APPLY TO A BREACH OF SECTIONS 9, 11, 12, or 13 OF THIS AGREEMENT.
14.2 DAMAGES CAP. EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS SET FORTH
IN THIS AGREEMENT, IN NO EVENT WILL A PARTY'S LIABILITY FOR ANY DAMAGES IN
ANY ACTION, HOWEVER BASED, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, EXCEED THE SUM OF $5 MILLION.
14.3 LOSS OR DAMAGE TO DATA. IN THE EVENT OF THE LOSS OF OR DAMAGE TO ANY
DATA ON EITHER PARTY'S SYSTEM, OR THE DEALERTRACK/CREDITREPORTPLUS
INTERFACE, DUE TO A CAUSE FOR WHICH A PARTY IS RESPONSIBLE, THE
RESPONSIBLE PARTY WILL ALLOW THE OTHER PARTY, A CREDIT BUREAU REPORT
PROVIDER OR A SUBSCRIBER TO RE-ENTER THE LOST OR DAMAGED DATA ON THEIR
SYSTEM WITHOUT ANY ADDITIONAL FEES ACCRUING TO THE INJURED
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
35
PARTY AND, EXCEPT FOR ANY INDEMNITY OBLIGATION THAT MAY ARISE FROM THE
LOSS OR DAMAGE TO DATA, THIS WILL CONSTITUTE THE INJURED PARTY'S SOLE
REMEDY IN CONNECTION WITH LOSS AND/OR DAMAGE.
14.4 ANALYSIS OF DATA. NEITHER PARTY WILL HAVE A DUTY TO VERIFY THE
CONTENT OR ACCURACY OF, OR IN ANY MANNER TO ANALYZE DATA. THE PARTIES
ACKNOWLEDGE THAT NEITHER PARTY IS ACTING AS A CREDIT BUREAU REPORTING
AGENCY OR A CONSUMER REPORTING AGENCY.
15. Taxes.
Each Party is responsible for their applicable taxes or duties based upon
amounts payable under this Agreement. The responsible Party will collect,
report, and remit applicable taxes in a timely manner.
16. Audit Rights.
Each Party shall maintain accurate records in connection with carrying out its
payment obligations under this Agreement. Each Party (in such capacity, the
"Auditing Party") may, upon no less than thirty (30) days prior notice to the
other Party (in such capacity the "Audited Party") and not more than twice each
twelve (12) month period, cause an independent certified public accountant,
including its external auditors, to inspect the applicable business and finance
records of the Audited Party during normal business hours for purposes of
verifying the Audited Party's compliance with its obligations under Section 6
hereof. Such audit shall not unreasonably interfere with the conduct of the
Audited Party's business, and the independent auditor conducting such audit,
prior to the conduct of such audit, shall agree in writing with the Audited
Party prior to commencing the audit to keep confidential all materials and
information supplied to them by the Audited Party in connection with such audit.
The fees and expenses charged by such certified public accountant in connection
with such audit shall be the sole responsibility of, and shall be paid by the
Auditing Party.
17. Miscellaneous.
17.1 Entire Agreement. This Agreement, the Exhibits, any addendums or amendments
executed by the Parties (concurrently or subsequent to the Effective Date) set
forth the entire agreement between the Parties with respect to the subject
matter of this Agreement, and no Party will be bound by any conditions,
definitions, warranties, understandings, or representations with respect to such
subject matter other than as expressly provided in this Agreement. This
Agreement supersedes all prior oral or written representations, agreements,
promises, or other communications, concerning or relating to the subject matter
of this Agreement.
17.2 Modifications, Amendments; Waiver. Except as expressly provided in this
Agreement, this Agreement may not be amended or modified except by a written
agreement signed by an authorized representative of each Party. The failure of a
Party to insist upon
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
36
strict performance of any of the terms of this Agreement will not be construed
as a waiver of the right to assert or rely upon such terms on any future
occasion.
17.3 Headings; Severability. The captions to sections of this Agreement are for
convenience of reference only and do not in any way limit or amplify the terms
or conditions of this Agreement. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, such provision
or requirement will be enforced only to the extent it is not in violation of
such law or is unenforceable and this Agreement, as well as all other provisions
and requirements of this Agreement, will remain in full force and effect. In the
event that performance of any obligation under this Agreement would cause a
breach or violation of any obligation of the DealerTrack-CREDCO Agreement, this
Agreement will be deemed amended to the extent necessary to modify the
obligation required by this Agreement to make it non-violative and not to cause
a breach of the DealerTrack-CREDCO Agreement.
17.4 Notices. Any notice, demand or other communication required or permitted
under the terms of this Agreement will be in writing and sent to the other Party
by a nationally known overnight courier service with tracking capabilities,
requiring a signature upon delivery, such as Airborne Express, Federal Express,
UPS, or USPS Express Mail. All notices will be effective upon receipt or if
courier delivery is refused, then upon tender of such delivery by the courier.
Notices will be addressed as follows:
(a) In the case of notices to CreditReportPlus:
Attn: Chief Executive Officer
CreditReportPlus, LLC
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
With a copy to: General Counsel (at the same addresses as
above.)
AND
General Counsel
First American Corporation
0 Xxxxx Xxxxxxxx Xxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
(b) In the case of notices to DealerTrack:
Until February 28, 2005:
DealerTrack, Inc.
000 Xxxxxx Xxxx, Xxxxx X000
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
37
Xxxxxxxx XX 00000
Attn: Chief Executive Officer
On and after February 28, 2005:
DealerTrack, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000-0000
Attn: Chief Executive Officer
With a copy to: General Counsel (at the same addresses as
above.)
A Party to this Agreement may change its address for notification purposes by
giving the other Party prior notice of the new address and the date it will
become effective.
17.5 Successors and Assigns. Subject to Section 8.2 and 8.3, neither Party may
assign this Agreement without the prior consent of the other Party and any
attempted unauthorized assignment will be void. Notwithstanding the foregoing,
either Party may assign any of its rights or obligations under this Agreement to
the surviving corporation with or into which that Party may merge or
consolidate, or an entity to which that Party transfers all or substantially
all, of its voting rights, securities or assets, provided, however, that neither
Party may assign this Agreement to any competitor of the other Party, without
that Party's prior consent.
17.6 Relationship of Parties; Third Party Beneficiaries. Nothing in this
Agreement establishes, deems or constitutes a relationship between the Parties
of employer and employee, agency, joint venture or partnership, for any purpose
whatsoever. Except as set out in this Agreement, neither Party has the authority
or power to bind the other Party, or to contract in the name of or create a
liability against the other Party, in any way or for any purpose. Each Party
will perform all services and obligations under this Agreement as an independent
contractor.
17.7 Governing Law; Jurisdiction; Counterparts. This Agreement will be governed
by and construed and enforced solely and exclusively in accordance with the laws
of the State of Delaware, exclusive of its choice of law rules. Any action or
proceeding to enforce any right or obligation under this Agreement will be
brought, if at all, only in a federal or state court situated in the State of
Delaware. This Agreement may be executed in one or more counterparts, each of
which will, for all purposes be deemed to be an original and all of which will
constitute the same instrument.
17.8 Force Majeure. To the extent that a Party's performance pursuant to this
Agreement is prevented, hindered or delayed by a Force Majeure Event, then the
non-performing Party will be excused from further performance of their
obligations for as long as such Force Majeure Event continues and such Party
uses best efforts to
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
38
recommence performance The excused non-performance is conditioned however upon
the non-performing Party providing the other Party with prompt notice of the
Force Majeure Event, but in no event will notice be later than five (5) days
after the Force Majeure Event. The Parties agree that a Force Majeure Event
which effects either a Party or a Credit Bureau Report Provider includes:
governmental emergency order, judicial or governmental action, emergency
regulations, sabotage, riots, vandalism, labor strikes or disputes, acts of God,
fires, electrical failure, terrorist acts, major computer hardware or software
failures, or equipment delivery delays. The occurrence of a Force Majeure Event
does not limit or otherwise affect the Parties' obligation to provide either
normal recovery procedures or any other disaster recovery services required by
this Agreement.
17.9 Injunctive Relief. Each Party acknowledge that any actual or threatened
wrongful act or omission of the other Party, including but not limited to the
use or disclosure of Confidential Information, in violation of this Agreement
may cause irreparable injury to the Disclosing Party for which other remedies at
law may be inadequate, and that the aggrieved Party may seek and obtain
injunctive or other equitable relief as may be necessary or appropriate to
prevent any such wrongful act or omission without first being required to post a
bond or similar security, and may also exercise such other rights and remedies
as the Disclosing Party may have at law or in equity.
17.10 Survival. Each Party's obligations will survive termination as follows:
(a) All Sections of this Agreement will survive during the Wind-Down Period; (b)
if this Agreement is not terminated by CreditReportPlus for DealerTrack's
material breach and failure to cure within the time provisions provided for
herein, Section 2.7 will survive; (c) if any outstanding amounts are due for the
period of time prior to termination of the expiration of the Wind-Down Period,
Sections 6.2, 6.3, 6.4, and 6.5 will survive; and (d) the following provisions
will survive any expiration or termination of this Agreement: Sections 8.5, 9.3,
9.4, 9.5, 9.6, 11, 12, 13, 14.1, 14.2, 14.4, 15, and 17.
17.11 Consents and Approvals. Except where otherwise expressly stated in this
Agreement or otherwise agreed to by the Parties, consents and approvals, when
required by this Agreement, will be in writing and will not be unreasonably
withheld, delayed, or conditioned.
17.12 Compliance with Applicable Law. All of the rights and obligations of both
Parties are conditioned upon the Parties' being at all times in compliance with
Applicable Law. Accordingly, no act or obligation of a Party provided for under
any provision of this Agreement will be required to be performed if in the
reasonable opinion of such Party's counsel, such act or obligation would violate
any material Applicable Law.
17.13 Rules of Construction. For purposes of this Agreement, except as otherwise
expressly provided for in this Agreement or unless the context otherwise
requires, the terms defined in this Agreement include the plural as well as the
singular, and the use of any gender in this Agreement will be deemed to include
the other gender or no gender. The term "including" means "including but not
limited to" unless the context otherwise expressly provides. In the event of a
conflict between this Agreement and the terms of any Exhibit, the terms of this
Agreement will prevail. In the event of a conflict between
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
39
this Agreement and an addendum, the terms of the addendum will control. This
Agreement represents the product of negotiations between the Parties and their
respective counsel and no provision of this Agreement will be construed or
interpreted for or against either Party by reason of the rule of construction
against the draftsman or similar doctrine.
Signature Page Follows
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
40
IN WITNESS WHEREOF, the Parties to this Agreement have executed this
Agreement effective as of December 1, 2004.
DEALERTRACK, INC. CREDITREPORTPLUS, LLC.
By: By:
Name: Name:
Title: Title:
DEALERTRACK-CREDITREPORTPLUS CONTRACT FINAL (12-1-04)
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