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EXHIBIT 10.5
LENDINGTREE, INC.
INTERNET MARKETING SERVICE AGREEMENT
This INTERNET MARKETING SERVICE AGREEMENT (the "Agreement") is entered into as
of February 17, 1999, between LENDINGTREE, INC., a Delaware corporation with its
principal place of business at 0000 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
("LendingTree"), and Allied Mortgage Capital Corporation, a Mortgage Banker
corporation with its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxx.
000, Xxxxxxx, Xxxxx 00000 ("Lender").
WITNESSETH:
WHEREAS, LendingTree has developed an Internet website, currently
located at xxxx://xxx.XxxxxxxXxxx.xxx, which offers potential consumer borrowers
the ability to complete an online qualification form with lenders who offer
their products through LendingTree (the "Participating Lenders") for various
consumer loan products, including, but not limited to, first mortgage loans,
refinancings, home equity loans, automobile and other personal property-secured
loans, unsecured personal loans and lines, credit cards, and such other products
as the Participating Lenders may offer periodically through LendingTree. In
addition, with the agreement of its Participating Lenders, LendingTree offers
and will offer the same products on corporate Intranet sites, which it will
develop from time to time with the cooperation and agreement of various business
enterprises. LendingTree's website and its corporate Intranet sites are referred
to together in this Agreement as the "Sites;"
WHEREAS, Lender desires to become one of LendingTree's Participating
Lenders, to offer various consumer loan products through the Sites, to allow
potential borrowers to prequalify for its loan products through the Sites, to
provide conditional approvals to qualified customers, and to perform such other
duties as are set forth in this Agreement;
WHEREAS, LendingTree desires to offer such products on behalf of
Lender, to prequalify consumer borrowers using Lender's minimum loan
qualification criteria, and to provide such other goods, services and facilities
as are set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants,
agreements and respective representations and warranties contained herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I. LENDINGTREE SITE OPERATION
Section 1.1 LendingTree Sites. The Sites will enable potential
borrowers ("customers") with access to the Internet and/or corporate
Intranets to obtain general information relating to the consumer loan
products offered by the Participating Lenders, and, through a simple
question-and-answer format, to prequalify for such products, through a
computerized filter system operated by LendingTree using the minimum
loan qualification criteria (the "Criteria") supplied by Participating
Lenders, for the purpose of facilitating the selection of and
application with Participating Lenders for a particular loan product.
Participating Lenders will have the ability to make conditional
approval offers to customers who have been prequalified by the
LendingTree filter system. The Sites will also offer customers general
research and education regarding such consumer loan products.
Section 1.2 License. LendingTree hereby grants to Lender, on the terms
and conditions set forth in this Agreement, the non-exclusive right and
license to participate in the Sites as a Participating Lender for the
Term, as defined in Article VII of this Agreement.
Section 1.3 Qualification Forms. Certain forms will be generated on the
Sites by a customer as a result of the customer responding to certain
questions, which, when completed by the customer, provide
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sufficient data to determine whether the customer prequalifies for any Lender
Products, as defined below, according to Lender's Criteria (individually, a
"Qualification Form" and collectively, the "Qualification Forms"). LendingTree
reserves the right to combine the information requested by all Participating
Lenders into one Qualification Form, which may be submitted to one or more
Participating Lenders, but not more than four (4) Participating Lenders at one
time, as described in section 1.4 below.
Section 1.4 Computerized Filter Systems. LendingTree will send Qualification
Forms that customers have completed through its computerized filter system.
LendingTree will forward those Qualification Forms that meet Participating
Lenders' Criteria, as determined by the filter system, to those Participating
Lenders offering the type of loan product requested by the customer that are
doing business in the jurisdiction of the customer for further processing;
provided, however, that if a customer's Qualification Form satisfies the
Criteria of more than four (4) Participating Lenders after submission to the
filter system, LendingTree will forward the Qualification Form to only four (4)
Participating Lenders selected at random by computer. Thus, although a
customer's Qualification Form may satisfy Lender's Criteria, the Qualification
Form may not necessarily be forwarded to Lender. If no prequalification
acceptance, prequalification offer, or firm offer of a loan or credit is made by
the initial group of Participating Lenders to whom a Qualification Form is sent,
LendingTree reserves the right to forward the Qualification Form to additional
Participating Lenders whose Criteria are satisfied by the information contained
in the Qualification Form until a positive response is received (including, a
prequalification acceptance, prequalification offer, firm offer or other
conditional approval). LendingTree does not independently prescreen or otherwise
evaluate the customer's credit quality. LendingTree is not responsible for the
accuracy of the Participating Lenders' Criteria in determining whether a
customer qualifies for credit. Other than transmitting responses to
Qualification Forms on behalf of Lender, LendingTree will have no responsibility
regarding handling of the Qualification Form or further processing of any
application after forwarding a Qualification Form to Lender.
Section 1.5 Communications. LendingTree will establish electronic systems on or
through the Sites which will permit customers and Participating Lenders to
communicate with LendingTree staff through private lines of communication. From
time to time LendingTree will submit various standard forms to Lender, including
Qualification Forms and standard correspondence with customers. LendingTree will
submit all such forms to Lender for its review and approval at least ten (10)
business days prior to use or publication of such forms. If Lender does not
respond at least five (5) business days from the date of receipt of such
proposed forms, Lender will be deemed to have approved, and LendingTree may
proceed with such use or publication of such forms in the form submitted to
Lender.
Section 1.6 Site Availability. Using standard industry practices and procedures,
LendingTree will use its best efforts to make the Sites available on a 24-hour
basis. However, LendingTree will not be responsible for inactivity of the Sites
due to reasons beyond LendingTree's control, including connection and server
problems, local, national or international communication connection problems,
natural or man-made disasters affecting communication between the host server
and customers, or other unforeseeable events beyond the control of LendingTree.
Lender shall receive no damages or compensation, including consequential
damages, resulting from inactivity of the Sites.
Section 1.7 Customer Information. LendingTree will transmit to Lender all
information concerning a customer that is collected by LendingTree in the
process of obtaining a completed Qualification Form if and when LendingTree
forwards such Form to Lender as provided in this Agreement. Lender may compile
and use lists of such customers and information for its own marketing purposes.
However, for a period of nine (9) months from the time a Qualification Form is
submitted to Lender through the Sites, Lender agrees that it will not solicit
the customer for same type of loan product as the one requested in the
Qualification Form unless the customer accepted the offer for the loan product
and Lender paid LendingTree the applicable fees described on Exhibit A. For
purposes of this Agreement, solicitation shall not include any direct mail or
national/regional advertising or marketing campaigns, provided they do not
specifically target customers.
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Section 1.8 Trademarks and Intellectual Property of LendingTree. Any use by
Lender of trademarks, trade names, service marks and logos (the "Trademarks") of
LendingTree in any advertisements, promotional materials, and on its website
shall be subject to LendingTree's prior, written approval, except as provided
herein. Lender shall submit all such advertising, marketing and promotional
materials using LendingTree's Trademarks to LendingTree for its approval at
least ten (10) business days prior to publication or distribution of such
materials. If LendingTree does not respond at least five (5) business days from
the date of receipt of such proposed materials, LendingTree will be deemed to
have approved. All logos, forms, or other visual or written materials provided
by LendingTree will remain the sole property of LendingTree and may be used only
in advertising directly related to Lender Products, as defined below, that are
featured on the Sites. After termination of the Agreement, Lender agrees that
such materials will not be used, references to LendingTree will be removed from
all such advertisements, promotional materials and websites, and all tangible
physical evidence of this information will be returned to LendingTree within a
reasonable time after LendingTree's request.
LendingTree is the sole owner of the following, and all related, intellectual
property: the design and content of the Sites (other than materials provided by
Lender), the technical knowledge related to the development of the common links
with Lender (not including security protocols and software provided by Lender),
software and hardware used to implement the system, including the Sites and the
databases, the underlying electronic origination system's design and function,
and all other elements of the Sites which are the work product of LendingTree
employees, or which were created for LendingTree by any outside contractor for
use on the Sites. Lender recognizes the proprietary nature of LendingTree's
intellectual property, including, but not limited to, the items enumerated
above. Lender further recognizes that LendingTree remains sole owner of the
database reflecting all information provided by the customers using the service
and all other aggregate database information, including percentage of loans
closing and volume of LendingTree customers. Lender will maintain security
protocols that are current and reasonable in the industry to safeguard this
information as well as all other confidential information received by Lender and
maintain its confidentiality as provided in the Reciprocal Non-Disclosure
Agreement, dated as of February 17, 1999, which is attached hereto, incorporated
herein by reference and made an integral part of this Agreement (the
"Non-Disclosure Agreement").
ARTICLE II. LENDINGTREE GOODS, SERVICES AND FACILITIES
Section 2.1 Site Services. In offering the Sites, LendingTree will provide to
Lender the following goods, services and facilities, in addition to any other
goods, services and facilities that may be described elsewhere in this
Agreement:
(a) Advertising, Marketing and Promotion. Using Trademarks, information
and other materials supplied by Lender, LendingTree will engage in national
campaigns via the Internet and other media to advertise, market and promote the
Sites and the loan products offered from time to time by Lender through the
Sites (the "Lender Products"). LendingTree will submit all such advertising,
marketing and promotional materials that includes Lender's Trademark or logo, to
Lender for its approval at least ten (10) business days prior to publication or
distribution of such materials. If Lender does not respond at least five (5)
business days from the date of receipt of such proposed materials, Lender will
be deemed to have approved, and LendingTree may proceed with such publication or
distribution of such materials in the form submitted to Lender. Lender shall be
solely responsible for the content of any advertising, marketing and promotional
materials published or distributed as described herein in connection with Lender
Products, and Lender shall defend, indemnify and hold LendingTree harmless for
any liability relating to such advertising, marketing and promotional materials
in accordance with the provisions of Article VI. Nonetheless, the publication
and distribution of such advertising, marketing and promotional materials will
be at LendingTree's sole expense.
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LendingTree shall use reasonable efforts, as it deems appropriate in its
discretion, to attract qualified customers to the Sites. Among other things,
LendingTree will from time to time enter into agreements with other Internet
websites or corporate intranet sites to market or co-brand the LendingTree
program. Such cooperative marketing arrangements shall not be subject to the
prior review or approval of Lender, however, Lender shall be advised of, and
have an opportunity to review, service standards arising out of any cooperative
marketing arrangements that are materially different from LendingTree service
standards, prior to their implementation. In the event Lender objects to these
service standards, Lender shall have an option to de-select receipt of any
Qualification Forms that are related to the cooperative marketing arrangement at
the time the new service standards become effective. LendingTree does not
guarantee receipt or transmission of a minimum number of Qualification Forms.
(b) Transmission of Data. LendingTree will be responsible for (1)
transmitting electronic information to Lender and/or customers, including the
Qualification Forms and Lender responses, (2) updating any pricing, product, and
Lender data (as defined below) the parties may agree to include on the Sites,
(3) developing, maintaining and upgrading LendingTree software and servers, (4)
receiving, processing and implementing Lender transmissions of Criteria
information for the filter system, and (5) providing certain technical support
for Lender and customers.
(c) Computer Loan Origination. LendingTree will perform the following
services on behalf of customers and Lender: (1) taking information from
customers on a Qualification Form, (2) obtaining a credit report, (3) analyzing
the customer's income, debt, credit score and credit history, among other
things, through use of a computerized filter system (based solely on Lender's
Criteria), to pre-qualify customers for consideration by Lender; (4) educating
customers regarding the financing process, advising customers regarding the
various loan products available on the Sites, (5) featuring the Lender Products,
services and Criteria, comparing the Lender to other Participating Lenders, and
providing customers with the tools to determine which Lender Product(s) are the
most appropriate product(s) in light of each customer's unique personal
financial circumstances, (6) providing disclosures required by applicable
federal and state law, (7) providing customers with 24 hour/7 day a week access
via the Internet to the LendingTree loan qualification system, (8) providing
customers the ability to monitor the status of their qualification submission
over the Internet, and (9) providing customer support services via electronic
mail and a toll-free telephone call center.
(d) Other Services. At the request of Lender, LendingTree may agree to
provide, for fees to be negotiated separately, additional services incidental to
the transmission of the Qualification Form and response, such as electronic
transmission of documents and other materials from Lender.
Section 2.2 Regulatory Compliance. LendingTree shall comply, in all material
respects, with all applicable federal and state regulatory requirements with
respect to goods, services and facilities to be provided under this Agreement.
LendingTree shall maintain any and all government approvals, licenses or
authorizations necessary to engage in the activities described in the Agreement.
It is mutually agreed and understood that LendingTree is not a lender or engaged
in any way in lending activities, and is merely providing a service to identify
potentially qualified borrowers for Lender.
ARTICLE III. LENDER'S OBLIGATIONS
Section 3.1 Lender's Products or Services. Lender will provide to LendingTree
from time to time and as soon as possible detailed product information for the
Lender Products, including the form content of descriptions of Lender and Lender
Products which Lender desires to appear on the Sites plus any general corporate
information (including logos or trademarks) (collectively, the "Lender data") to
be published by LendingTree. Lender is responsible for determining which
products to offer through the Sites and for the accuracy and completeness of all
information concerning Lender and Lender
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Products that appears on the Sites to the extent that such data has been
supplied to LendingTree by Lender.
Section 3.2 Qualification Forms. Lender will assist LendingTree from time to
time in devising and upgrading Qualification Forms that will be compatible with
Lender Products and filter Criteria.
Section 3.3 Computerized Filter Systems. Lender will provide to LendingTree its
most current Criteria, updated as soon as reasonably feasible to maintain
accuracy of the LendingTree filter system, in the format(s) specified by
LendingTree from time to time. Lender is solely responsible for the content of
its Criteria. Lender is solely responsible for the determination of
creditworthiness and the verification of the identity and other information
received regarding customers.
Section 3.4 Action on Qualification Forms. Lender shall respond timely to all
Qualification Forms submitted to it, and may transmit the response directly to
the customer or request LendingTree to respond as directed by Lender. In either
event, Lender shall inform LendingTree immediately of its response through the
LendingTree system. Such response shall be transmitted no later than two (2)
business days after Lender receives a Qualification Form from LendingTree. At
the sole discretion of Lender, such response shall be a prequalification
acceptance, rejection, prequalification offer, firm offer of a loan or a
counteroffer.
Section 3.5 Trademarks. All under Trademarks, logos, forms, or other visual or
written materials provided by Lender will remain the sole property of Lender,
and may be used only in the content of the Sites and advertising or other
activities directly related to the Sites and the activities contemplated in this
Agreement. After termination of the Agreement, LendingTree agrees that such
materials will not be used, references to Lender will be removed from the Sites,
and all tangible physical evidence of this information will be returned to
Lender within a reasonable time after Lender's request.
Section 3.6 Other Lender Obligations. As a Participating Lender, Lender shall
provide the following obligations/services in addition to any other services
that may be described elsewhere in this Agreement.
(a) If applicable, facilitate and support the generation of accurate,
real-time rate information, as well as specific information about all costs
(e.g., closing costs, processing fees) that customer may be asked to pay in the
course of obtaining a particular Lender Product.
(b) Support the download of Lender data, product, and customer
information from Lender's systems to the Sites. Lender shall provide all
information to be placed on the Sites in the format(s) specified by LendingTree
from time to time. The Lender data to be provided includes Lender's Trademarks
and a brief description of Lender (one paragraph). LendingTree reserves the
right to expand the information regarding Lender that is included on the Sites,
but only with Lender's consent and content to be provided by Lender.
(c) Cooperate with LendingTree in establishing effective customer
communication transfer procedures and follow-up mechanism among the customer,
the Sites and Lender.
(d) Track all prequalification requests and other customer inquiries
regarding Lender Products made to Lender through the Sites and update Lending-
Tree as frequently as is reasonably feasible regarding the status of such
prequalifications and inquiries. In addition, Lender agrees to use commercially
reasonable efforts to track and report to LendingTree all prequalifications,
inquiries and other customer responses regarding Lender Products which originate
from a Qualification Form on the Sites, but which are transmitted to Lender
directly by the customer either through Lender's branches,
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e-mail, toll-free numbers or other means. Lender agrees to make such reports as
are requested by LendingTree from time to time, including but not limited to,
the reports specified in Exhibit A.
(e) Promptly review for accuracy and completeness all information, Site
screens and processing and analytical mechanisms submitted to it for review by
LendingTree as they relate to Lender Products and services and promptly report
back any necessary corrections and/or modifications to the appropriate party.
(f) Deploy an automated interface to its underwriting, which automated
interface shall be mutually agreed upon by Lender and LendingTree.
(g) Comply with all applicable regulatory requirements with respect to
Lender Products on the Sites and dealings with customers, including, without
limitation, federal laws and regulations, such as the Truth-in-Lending Act, Real
Estate Settlement Procedures Act, Equal Credit Opportunity Act, Fair Housing
Act, and Fair Credit Reporting Act, and all applicable state laws and
regulations. Lender shall maintain at all times any and all government
approvals, licenses and authorizations necessary to offer its Lender Products.
(h) Maintain copies of the documents required by state and federal
regulations and provide LendingTree with copies of such documents upon request
of LendingTree and/or any government agency.
(i) Comply with LendingTree service standards ("LendingTree Service
Standards") as communicated to Lender by LendingTree from time to time. Lending-
Tree shall disclose to Lender, any material changes to LendingTree Service
Standards prior to implementation. In the event Lender objects to any Lending-
Tree Service Standards, Lender may terminate this Agreement upon thirty (30)
days written notice to LendingTree as provided in Article VII.
ARTICLE IV. FEES FOR PARTICIPATION IN SITES
Lender agrees to pay to LendingTree all fees set forth in Exhibit A to this
Agreement as compensation for the license and other goods, services, and
facilities provided by LendingTree under this Agreement. Exhibit A is
incorporated by reference and is an integral part of this Agreement.
ARTICLE V. REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 5.1 Representations and Warranties of Lender. Lender represents and
warrants as follows:
(a) Authority. Lender is a corporation duly organized and validly
existing under the laws of its jurisdiction of incorporation. Lender has full
corporate power and authority to transact any and all business contemplated by
this Agreement and possesses all requisite authority, power, and material
licenses, permits and franchises to conduct its business wherever conducted and
to execute, deliver and comply with its obligations under the terms of this
Agreement. Lender has taken all necessary action to authorize its execution,
delivery and performance of this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and the performance of its obligations hereunder by
Lender will not (i) conflict with or violate (A) Lender's Certificate of
Incorporation or By-laws, or (B) any provision of any law or regulation or any
decree, demand or order to which Lender is subject, or (ii) conflict with or
result in a breach of or constitute a default (or an event which, with notice or
lapse of time, or both, would
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constitute a default) under any of the terms, conditions or provisions of any
agreement or instrument to which Lender is a party or by which it is bound or
any order or decree applicable to Lender or result in the creation or imposition
of any lien on any of its assets or property.
(c) Licenses and Consents. Lender has obtained all necessary or
required governmental licenses and consents to the transactions contemplated by
this Agreement. No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by Lender of or compliance by Lender with this Agreement, or if
required, such approval has been obtained prior to the date of this Agreement.
(d) Legal Action Against Lender. There is no claim, action, suit,
proceeding or investigation pending or, to the best of Lender's knowledge,
threatened against Lender which, either in any one instance or in the aggregate,
may result in any material adverse change in the business, operations, financial
condition, properties or assets of Lender, or in any material impairment of the
right or ability of Lender to carry on its business substantially as now
conducted, or in any material liability on the part of Lender, or which would
draw into question the validity of this Agreement or any of the other
instruments, documents or agreements entered into by Lender in connection with
this Agreement, or of any action taken or to be taken in connection with the
obligations of Lender contemplated therein, or which would be likely to impair
materially the ability of Lender to perform under the terms of this Agreement.
(e) Binding on Lender; Enforceability. This Agreement, assuming due
authorization, execution and delivery hereof by LendingTree, and all the
obligations of Lender hereunder, shall constitute the valid and binding
obligations of Lender, enforceable against Lender in accordance with the terms
hereof, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws affecting the enforcement of
creditors' rights in general and by general equity principles (regardless of
whether such enforcement is considered in a proceeding in equity or at law).
(f) Compliance With Laws. Lender has complied and will continue to
comply with all applicable federal and state laws and regulations in its
business operations related to its performance under this Agreement. In
particular, Lender represents and warrants that its lending Criteria, as applied
in the LendingTree filter system and in its underwriting processes, comply with
applicable state and federal laws and regulations, including, without
limitation, the Fair Housing Act and Equal Credit Opportunity Act.
Section 5.2 Representations and Warranties of LendingTree. LendingTree
represents and warrants as follows:
(a) Authority. LendingTree is a corporation duly organized and validly
existing under the laws of the State of Delaware. LendingTree has full corporate
power and authority to transact any and all business contemplated by this
Agreement and possesses all requisite authority, power, and material licenses,
permits and franchises to conduct its business wherever conducted and to
execute, deliver and comply with its obligations under the terms of this
Agreement. LendingTree has taken all necessary action to authorize its
execution, delivery and performance of this Agreement.
(b) Conflict with Existing Laws or Contracts. The execution and
delivery of this Agreement and the performance of its obligations hereunder by
LendingTree will not (i) conflict with or violate (A) LendingTree's Certificate
of Incorporation or By-laws, or (B) any provision of any law or regulation or
any decree, demand or order to which LendingTree is subject, or (ii) conflict
with or result in a breach of or constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under any of the
terms, conditions or provisions of any agreement or instrument to
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which LendingTree is a party or by which it is bound or any order or decree
applicable to LendingTree or result in the creation or imposition of any lien on
any of its assets or property.
(c) Licenses and Consents. LendingTree in connection with performance
of its duties under this agreement, has obtained or will obtain all necessary or
required governmental licenses and consents requisite for the transactions
contemplated by this Agreement. No consent, approval, authorization or order of
any court or governmental agency or body is required for the execution, delivery
and performance by LendingTree of or compliance by LendingTree with this
Agreement, or if required, such approval has been obtained prior to the date of
this Agreement.
(d) Legal Action Against LendingTree. There is no claim, action, suit,
proceeding or investigation pending or, to the best of LendingTree's knowledge,
threatened against LendingTree which, either in any one instance or in the
aggregate, may result in any material adverse change in the business,
operations, financial condition, properties or assets of LendingTree, or in any
material impairment of the right or ability of LendingTree to carry on its
business substantially as now conducted, or in any material liability on the
part of LendingTree, or which would draw into question the validity of this
Agreement, or any of the other instruments, documents or agreements entered into
by LendingTree in connection with this Agreement, or of any action taken or to
be taken in connection with the obligations of LendingTree contemplated therein,
or which would be likely to impair materially the ability of LendingTree to
perform under the terms of this Agreement.
(e) Binding on LendingTree; Enforceability. This Agreement, assuming
due authorization, execution and delivery hereof by Lender, and all the
obligations of LendingTree hereunder, shall constitute the valid and binding
obligations of LendingTree, enforceable against LendingTree in accordance with
the terms hereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting the
enforcement of creditors' rights in general and by general equity principles
(regardless of whether such enforcement is considered in a proceeding in equity
or at law).
(f) Qualification Form. LendingTree warrants that its Qualification
Form complies with relevant state and federal laws and will provide these forms
for Lender's review and comment at Lender's request. LendingTree does not make
any representations or warranties concerning the identity or creditworthiness of
any customers or the validity or accuracy of information submitted by the
customers.
(g) Random Distribution of Qualification Forms. After Qualification
Forms are passed through the filter system, they are distributed to up to four
(4) Participating Lenders on a random basis. LendingTree warrants that its
system does not give preferential treatment to any Participating Lender.
5.3 Covenants.
(a) Continuing Obligations of Lender. Lender shall cooperate with
LendingTree in the performance of this Agreement until the termination hereof.
Lender shall not take any action or refrain from taking any action which would
jeopardize or compromise the performance of the Sites as contemplated herein or
which would hinder LendingTree in the performance of its services to the
Participating Lenders and to its customers. Lender shall promptly forward to
LendingTree all notices, claims, letters, documents and other information
received by Lender which are relevant to the performance of this Agreement.
Lender shall provide LendingTree with all information and documentation for
Lender Products which are necessary or relevant to the performance of the
transactions contemplated by this Agreement.
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(b) Accounting. LendingTree shall have the right from time to time, on
reasonable advance notice to Lender, during usual business hours, to carry out
an examination of Lender's books and records, including without limitation,
records and reports on prequalifications, applications, sales and/or closings
that are initiated through Sites and any other services provided through
LendingTree (the "Reports"), through its own personnel or through accountants or
other representatives selected by LendingTree for the purpose of verifying the
completeness and accuracy of the Reports. In the event that such examination
shall disclose that the Transmission Fees or CLO Fees payable to LendingTree for
any period were understated on the Reports issued by Lender with respect to such
period, Lender shall immediately pay the deficiency with interest at a rate of
one percent (1%) per month, and if the amount of the understatement exceeds ten
percent (10%) of the fees payable with respect to the period subject to such
examination, Lender shall reimburse LendingTree for its cost in conducting such
examination, including without limitation the fees and expenses of any
accountants retained by LendingTree to conduct such examination.
(c) Further Assurances. At any time, and from time to time after the
execution of this Agreement, upon the reasonable request of a party hereto, and
at the expense of such party, the other party shall do, execute, acknowledge and
deliver, and shall cause to be done, executed, acknowledged and delivered, all
such further acts, deeds, assignments, transfers, conveyances, powers of
attorney and assurances as may be reasonably required in order to enable the
parties to perform their respective obligations hereunder and carry out the
terms of this Agreement.
ARTICLE VI. LIMITATION ON LIABILITY; INDEMNIFICATION
Section 6.1. Indemnification for Actions Taken in Good Faith. Neither
LendingTree nor any directors, officers, employees or agents of LendingTree
(collectively, "LendingTree Indemnified Parties") shall be liable to Lender, any
directors, officers, employees or agents of Lender (collectively, "Lender
Indemnified Parties"), or any third party for, and Lender shall defend and
indemnify the LendingTree Indemnified Parties and hold each of them harmless
from and against, any action taken by the LendingTree Indemnified Parties, or
for their refraining from taking any action, in good faith reliance upon
information provided by Lender, pursuant to this Agreement; provided, however,
that this provision shall not protect any LendingTree Indemnified Party against,
and Lender shall not be obligated to indemnify or hold harmless any LendingTree
Indemnified Party from or against, any liability that would otherwise be imposed
by reason of willful misfeasance, bad faith or negligence on the part of the
LendingTree Indemnified Parties in the performance of or failure to perform
LendingTree's obligations hereunder.
Section 6.2. General Indemnification by LendingTree. LendingTree shall defend
and indemnify the Lender Indemnified Parties and hold each of them harmless from
and against any and all claims, losses, damage, penalties, fines, forfeitures,
reasonable legal fees and expenses and related costs, expenses of litigation,
judgments, and any other costs, fees and expenses (each, a "Liability") that
were caused by or resulted from a breach of any of LendingTree's
representations, warranties, covenants and agreements contained in this
Agreement, the intellectual property developed and used by LendingTree, or by
LendingTree's negligence in the performance of or failure to perform its duties
as provided in this Agreement.
Section 6.3. General Indemnification by Lender. Lender shall defend and
indemnify the LendingTree Indemnified Parties and hold each of them harmless
from and against any and all Liabilities that were caused by or resulted from a
breach of any of Lender's representations, warranties, covenants and agreements
contained in this Agreement, the intellectual property developed and used by
Lender, by any of Lender's lending policies, practices, and procedures,
including the Criteria, or by Lender's negligence in the performance of or
failure to perform its duties as provided in this Agreement.
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Section 6.4 Survival of Indemnifications. Lender's and LendingTree's respective
obligations to indemnify any LendingTree Indemnified Party or any Lender
Indemnified Party will survive the expiration or termination of this Agreement
by either party for any reason.
Section 6.5 Notice of Claims. Each party shall promptly notify the other in
writing of any and all litigation and claims known to such party made against it
or the other party in connection with this Agreement. Each party shall cooperate
with the other in the defense or handling of any claim, action or investigation
relating to the subject matter of this Agreement, provided that such cooperation
shall not be deemed an acceptance of responsibility therefor, except as provided
below. Any request for indemnification under this paragraph shall be in writing
and shall state with particularity the specific facts supporting the request for
indemnification and a good faith estimate of the amount of the indemnification
requested. In the event responsibility for a request for indemnification
hereunder is unconditionally accepted in writing, the party accepting such
responsibility may, at its option, elect to take up the defense or handling of
any pending claim, action or investigation and, in such event, the party
requesting indemnification shall promptly relinquish control of such defense to
the accepting party. Unless and until a request for indemnification hereunder is
unconditionally accepted, the requesting party may retain control of the defense
or handling of the claim, action or investigation. The failure of a party to
accept a request for indemnification under this paragraph shall not be binding
upon the requesting party and such party's retention of the control of the
defense or handling of the claim, action or investigation shall not prejudice
its right to seek enforcement of this paragraph in court.
ARTICLE VII. TERM AND TERMINATION
Section 7.1 Initial Term. The initial term of this Agreement (the "Initial
Term") is twelve (12) months from February 17, 1999, which is the date Lending
Tree will begin forwarding Qualification Forms to Lender (the "Commencement
Date").
Section 7.2 Subsequent Terms. Following expiration of the Initial Term, this
Agreement shall continue in effect until either party terminates it as provided
below. The Initial Term and any subsequent terms are referred to herein as the
"Term."
Section 7.3 Termination. After the Initial Term, this Agreement may be
terminated at any time during the Term by either party giving thirty (30) days'
prior written notice to the other party. During the Initial Term, either party
may terminate this Agreement in the event that the other party breaches any
material covenant or representation or warranty of this Agreement, and such
breach continues thirty (30) days after notice of breach is given to such other
party.
Section 7.4 Effect of Termination. Following termination of this Agreement, if
any customer has initiated acquisition of a Lender Product through any Sites
prior to the termination date and Lender did not sell the Lender Product to the
customer, but Lender then sells the same type of product within six (6) months
after the termination date, Lender shall pay LendingTree compensation for such
Lender Product as provided in Exhibit A hereto. In addition to any other remedy
available at law or in equity, upon termination for breach, the non-breaching
party may seek indemnification as provided in this Agreement.
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VIII. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement or any
breach of this Agreement, including any controversy or claim as to its
arbitrability or rescission shall be finally settled by arbitration before two
arbitrators, one chosen by each party, with the commercial arbitration rules of
the American Arbitration Association in force at that time. Arbitration shall be
conducted in Charlotte, North Carolina, unless the parties mutually agree to
another location. Any judgment upon the award rendered by the arbitrators may be
entered in any court of competent jurisdiction in that locale. The arbitrators
shall not, under any circumstances, have any authority to award punitive or
exemplary damages.
IX. CHOICE OF LAW, JURISDICTION, VENUE AND ATTORNEYS' FEES
The parties agree that this Agreement shall be construed and controlled by the
laws of the State of North Carolina and the Rules of the American Arbitration
Association. Should a dispute arise under this contract, and should the
arbitration provisions herein become inapplicable, the parties agree that
jurisdiction over and venue of any suit arising out of related to this Agreement
shall be exclusively in the state and federal courts of Charlotte, North
Carolina.
If either party employs attorneys to enforce any right arising out of or
relating to this Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees, in arbitration, litigation, or otherwise.
ARTICLE X. MISCELLANEOUS
Section 10.1 Notices. Any written notice required or permitted to be given to
the parties hereunder shall be addressed to the parties at the addresses first
set forth above. All written notices shall be delivered in person or shall be
sent by registered or certified mail, return receipt requested, and shall be
deemed effective, three (3) days after the same is mailed as provided above with
postage prepaid. Notice sent by any other method shall be effective only upon
actual receipt.
Section 10.2 Assignment. This Agreement shall not be assignable in whole or in
part by LendingTree or Lender without the other party's prior written consent,
and any attempted assignment without such consent shall be void. Subject to the
foregoing, this Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns. A
change in control of either party, for example, by merger or sale of stock,
shall not be deemed to be an assignment under this Agreement.
Section 10.3 Waiver. No term or provision hereof will be deemed waived, and no
variation of terms or provisions hereof shall be deemed consented to, unless
such waiver or consent shall be in writing and signed by the party against whom
such waiver or consent is sought to be enforced. Any delay, waiver or omission
by LendingTree or Lender to exercise any right or power arising from any breach
or default of the other party in any of the terms, provisions or covenants of
this Agreement shall not be construed to be a waiver by LendingTree or Lender of
any subsequent breach or default of the same or other terms, provisions or
covenants on the part of either party.
Section 10.4 Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto relating to the subject matter hereof, except where
expressly noted herein, and all prior negotiations, agreements and
understandings, whether oral or written, are superseded or canceled hereby.
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Section 10.5 Modification. This Agreement may not be amended or modified except
in a written document signed by both parties.
Section 10.6 Severability. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, this Agreement shall be construed as
if not containing that provision, and the rest of the Agreement shall remain in
full force and effect, and the rights and obligations of the parties hereto
shall be construed and enforced accordingly.
Section 10.7 Independent Contractor. LendingTree, in performance of this
Agreement, is acting as an independent contractor, is not the partner, joint
Venturer or agent of Lender and has no authority to act on behalf of Lender
except as provided in this Agreement. The parties shall each be responsible for
payment of their respective taxes and assessments incurred in connection with
performance of this Agreement.
Section 10.8 Confidentiality. Each party agrees to keep all information related
to the other party confidential, as provided in the Non-Disclosure Agreement.
Furthermore, both parties agree to comply with all state and federal laws
governing the confidentiality of consumer credit information, to maintain
confidentiality of this information, and to disclose such information only for a
permissible purpose related to the extension of credit. The provisions of the
Non-Disclosure Agreement shall survive termination of this Agreement for period
of three (3) years.
Section 10.9 Limitation on Liability of Officers, Directors, Members, Employees
and Agents. Neither party shall make any claim against the officers, directors,
members, employees or agents of the other party but instead shall look solely to
the assets of the other party for satisfaction of any liability of such party
under this Agreement.
Section 10.10 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
signed, sealed and delivered by its duly authorized officer as of the date first
written above.
LENDINGTREE, INC.
By /s/ XXXXXXX X. XXXXX (SEAL)
------------------------------
Name Xxxxxxx X. Xxxxx
----------------------------
Title Chief Executive Officer
---------------------------
LENDER:
By /s/ XXXXX XXXXX (SEAL)
------------------------------
Name Xxxxx Xxxxx
----------------------------
Title President
---------------------------
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LENDINGTREE, INC.
STANDARD FORM OF RECIPROCAL NON-DISCLOSURE AGREEMENT
THIS RECIPROCAL NON-DISCLOSURE AGREEMENT ("the Agreement") is made
between LendingTree, Inc., a Delaware corporation, and Allied Mortgage Capital
Corporation, and entered into as of February 17, 1999.
In consideration of the mutual promises and covenants contained in this
Agreement and the mutual disclosure of confidential information to each other,
the parties hereto agree as follows:
1. CONFIDENTIAL INFORMATION AND CONFIDENTIAL MATERIALS.
"Confidential Information" means nonpublic information that Disclosing
Party designates as being confidential or which, under the
circumstances surrounding disclosure ought to be treated as
confidential. "Confidential Information" includes, without limitation
and without requiring any prior designation as confidential,
information relating to: released, unreleased or planned Disclosing
Party products, product specifications, services, and offerings,
including, but not limited to, the use or development of any software
system or credit scoring model; the plans or activities related to the
marketing or promotion of any Disclosing Party product, service, or
offering; Disclosing Party's business policies, practices, business
strategy and marketing plans; terms of closed loans, discoveries,
ideas, concepts, software in various stages of development, designs,
drawings, specifications, techniques, models, data, source code, object
code, documentation, diagrams, flow charts, research, development,
processes, procedures, "know-how," customer names and other information
related to customers, price lists, pricing policies and financial
information; and information received from others that Disclosing Party
is obligated to treat as confidential. Confidential Information
disclosed to Receiving Party by any Disclosing Party Subsidiary and/or
agents is covered by this Agreement.
Confidential Information shall not include any information that: (i) is
or subsequently becomes publicly available without Receiving Party
breach of any obligation owed Disclosing Party; (ii) became known to
Receiving Party prior to Disclosing Party's disclosure of such
information to Receiving Party; (iii) became known to Receiving Party
from a source other than Disclosing Party other than by the breach of
an obligation of confidentiality owed to Disclosing Party; or (iv) is
independently developed by Receiving Party.
"Confidential Materials" shall mean all tangible materials containing
Confidential Information, including, without limitation, written or
printed documents and computer disks or tapes, whether machine or user
readable.
2. RESTRICTIONS.
Outside the necessary use of this information within the scope of the
activities contemplated in connection with this Agreement and any other
agreement entered into between the parties, which agreement
specifically incorporates this Agreement by reference, Receiving Party
will not disclose, sell, distribute, make public, or otherwise use the
Confidential Information without the express written consent of
Disclosing Party, except that Receiving Party may disclose Confidential
Information to its consultants as provided below. Receiving Party may
also disclose Confidential Information in accordance with judicial or
other government order, provided Receiving Party shall give Disclosing
Party reasonable notice prior to such disclosure and shall comply with
any applicable protective order or equivalent.
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Receiving Party shall take reasonable security precautions (including
maintaining security protocols that are current and reasonable in the
industry to safeguard this information) at least as great as the
precautions it takes to protect its own confidential information, to
maintain the confidentiality of the Confidential Information. Receiving
Party may disclose Confidential Information or Confidential Material
only to Receiving Party's employees or consultants on a need-to-know
basis. Receiving Party will implement appropriate policies, procedures
and written agreements with its employees and consultants sufficient to
enable it to comply with all the provisions of this Agreement.
Confidential Information and Confidential Materials may be disclosed,
reproduced, summarized or distributed only in pursuance of Receiving
Party's business relationship with Disclosing Party, and only as
otherwise provided hereunder. Receiving Party agrees to segregate all
such Confidential Materials from the confidential materials of others
in order to prevent commingling.
Receiving Party may not reverse engineer, decompile or disassemble any
software disclosed to Receiving Party.
3. RIGHTS AND REMEDIES.
Receiving Party shall notify Disclosing Party immediately upon
discovery of any unauthorized disclosure, sale, distribution,
publication or use of Confidential Information and/or Confidential
Materials, or any other breach of this Agreement by Receiving Party,
and will cooperate with Disclosing Party in every reasonable way to
help Disclosing Party regain possession of the Confidential Information
and/or Confidential Materials and prevent its further authorized use.
Receiving Party shall return all originals, copies, reproductions and
summaries of Confidential Information or Confidential Materials within
sixty (60) days after Disclosing Party's request, or, at Disclosing
Party's option, certify destruction of the same.
Receiving Party acknowledges that monetary damages may not be a
sufficient remedy for unauthorized disclosure, sale, distribution,
publication or use of Confidential Information and that Disclosing
Party shall be entitled, without waiving any other rights or remedies,
to such injunctive or equitable relief as may be deemed proper by a
court of competent jurisdiction.
Disclosing Party may visit Receiving Party's premises, with reasonable
prior notice and during normal business hours, to review Receiving
Party's compliance with the terms of this Agreement.
4. MISCELLANEOUS.
All Confidential Information and Confidential Materials are and shall
remain the property of Disclosing Party. By disclosing information to
Receiving Party, Disclosing Party does not grant any express or implied
right to Receiving Party to or under Disclosing Party patents,
copyrights, trademarks, or trade information.
The terms of confidentiality under this Agreement shall not be
construed to limit either party's right to independently develop or
acquire products without the use of the party's Confidential
Information.
This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof. It shall not be modified
except by a written agreement dated subsequent to the date of the
Agreement and signed by both parties. None of the provisions of this
Agreement shall be deemed to have been waived by any act or
acquiescence on the part of Disclosing Party, its agents, or employees,
but only by an instrument in writing signed by an authorized officer of
the Disclosing Party. No waiver
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of any provision of this Agreement shall constitute a waiver of any
other provision(s) or of the same provision on another occasion.
If either party employs attorneys to enforce any right arising out of
or relating to this Agreement, the prevailing party shall be entitled
to recover reasonable attorneys' fees. This Agreement shall be
construed and controlled by the laws of the State of North Carolina.
Jurisdiction over and venue of any suit arising out of related to this
Agreement shall be exclusively in the state and federal courts of the
State of North Carolina.
Subject to the limitations set forth in this Agreement, this Agreement
will inure to the benefit of and be binding upon the parties, their
successors and assigns.
If any provision of this Agreement shall be held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, the
remaining provisions shall remain in full force and effect.
All obligations created by this Agreement shall survive change or
termination of the parties' business relationship.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
LENDINGTREE, INC. LENDER
/s/ XXXXXXX X. XXXXX /s/ XXXXX XXXXX
----------------------------------------- ----------------------------------
Xxxxxxx X. Xxxxx, Chief Executive Officer Xxxxx Xxxxx, President
February 25, 1999 February 17, 1999
----------------------------------------- ----------------------------------
Date Date
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