INFORMATION FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED PURSUANT TO
RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED, IS OMITTED AND IS NOTED
WITH **. A COPY OF THIS AGREEMENT, INCLUDING ALL INFORMATION FOR WHICH
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED HAS BEEN FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT 10.8
MASTER AGREEMENT
FOR
MARKETING, OPERATIONAL AND COOPERATIVE SERVICES
THIS AGREEMENT ("Agreement") for the performance of Marketing, Operational and
Cooperative Services is executed and made effective as of November 27, 2001 (the
"Effective Date"), among EQUIFAX CONSUMER SERVICES, INC., a Georgia corporation
with a primary place of business at 0000 Xxxxxxxxx Xxxxxx XX, Xxxxxxx, XX
30335("Equifax"), and INTERSECTIONS INC., a Delaware corporation with a primary
place of business at 00000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000, and CREDITCOMM
SERVICES LLC, a Delaware limited liability company with a primary place of
business at 00000 Xxxxx Xxxxx, Xxxxxxxxx, XX 00000 (Unless the context otherwise
requires, Intersections Inc. and CreditComm Services LLC are referred to herein
collectively as "Intersections").
WHEREAS, Intersections is engaged, among other things, in the business of
promoting, selling and providing consumer privacy and fraud prevention products
and services, including credit monitoring, notification, credit analysis, theft
of identity insurance, fraud consulting and related services; and
WHEREAS, Equifax is a consumer credit information company that maintains
databases of consumer credit information and provides such data and related
services to businesses and consumers; and
WHEREAS, pursuant to a certain Note Purchase Agreement dated as of November,
_____, 2001 among Intersections and CreditComm, as the issuers, and CD Holdings
Inc., an Affiliate of Equifax, as the Purchaser, (the "Investment Agreement"),
Equifax is concurrent with this agreement, loaning certain funds to
Intersections; and
WHEREAS, to further develop their relationship, the parties desire to provide to
each other certain marketing and operational support, and to collaborate in
exploring certain cooperative opportunities as described herein, and to perform
and assume the functions, responsibilities and tasks associated with such
marketing and operational support services.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
1.1. Capitalized terms not defined herein shall have the meanings
set forth on Exhibit A hereto.
2. AGREEMENT TO PROVIDE SERVICES.
2.1. Intersections shall, subject to the terms and provisions of
this Agreement, provide Equifax with (i) Credit Watch (Offline)
Services as described on Exhibit B, and Credit Watch On-line Ordering
Services as described in Exhibit B-1 and (ii) such other services
as the Parties may from time to time mutually agree upon pursuant to
Sections 5 or 6 hereof (collectively, the "Intersections Services").
2.2. Equifax shall, subject to the terms and provisions of this
Agreement, provide Intersections with (i) Online Ordering for
Tri-Bureau Reports Services as described on Exhibit C and (ii) such
other specific services as the Parties may from time to time mutually
agree upon pursuant to Sections 5 or 6 hereof (collectively, the
"Equifax Services").
3. PERFORMANCE AND RESOURCES
3.1. Each Party agrees that its respective performance of the
Services, or any other obligation under this Agreement, shall at a
minimum (a) be performed for the other Party in a diligent, workmanlike
manner in accordance with generally accepted, industry standards
applicable to the performance of such Services, and (b) shall meet or
exceed each of the applicable Performance Standards set forth in the
Exhibit applicable to such Service, subject to any limitations, and in
accordance with the provisions of this Agreement.
3.2. Except as otherwise provided in the Agreement, Equifax and
Intersections, respectively shall each provide and administer, manage,
support, maintain and pay for all resources (including, without
limitation, personnel, hardware, software, facilities, services and
other items, however described) necessary or appropriate to provide,
perform and deliver the Equifax Services or the Intersections Services,
respectively, or in performing any other obligation as described in the
Agreement.
3.3. Each Party represents and warrants that it has, and during the
Term will have, and each of the employees and subcontractors that it
will use to provide and perform the Services has, and during the Term
will have, the necessary knowledge, skills, experience, qualifications,
rights and resources to provide and perform the Services in accordance
with the Agreement.
3.4. Each Party will have the right to change the location of the
activities associated with any Services with the prior written consent
of the other Party which consent shall not be unreasonably withheld.
3.5. The Parties covenant to timely and diligently cooperate to
effect the goals, objectives and purposes of the Agreement and to
facilitate the performance of their respective duties and obligations
under the Agreement in a commercially reasonable manner. Further, the
Parties agree to deal and negotiate with each other and their
respective Affiliates in good faith in the execution and implementation
of their duties and obligations under the Agreement. However, nothing
in this Agreement or Exhibit shall be construed as creating a
relationship in which either Party is the fiduciary of the other.
3.6. During the term of this Agreement, Equifax and Intersections
will permit employees and agents of the other reasonable access to its
premises if reasonably necessary for the Party to perform the Services
or otherwise perform under this Agreement. While on the premises of the
other, the employees and agents of the visiting Party shall abide by
the
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rules and regulations of the hosting Party. The visiting Party shall
indemnify, defend and hold the hosting Party harmless from and against
any and all damages, losses, costs and expenses suffered or incurred by
reason of damage to person or property caused by the gross negligence
or willful misconduct of its employees or agents while on the premises
of the hosting Party.
4. CUSTOMER SERVICE
4.1. For each Service, the Parties shall agree as to (i) the
elements of customer service to be provided, (ii) which party shall
provide the same, and (iii) the performance standards that shall apply
to such Customer Service. Such agreement shall be specified on the
applicable Exhibit.
5. CHANGES OR ADDITIONS TO SERVICES
5.1. Changes to Services. In the event that either Party wishes to
change the scope of a Service currently being provided, the requesting
Party's Project Executive or his or her designee shall submit a written
proposal to the other Party's Project Executive describing such desired
change or such additional Service. Such Party's Project Executive shall
review the proposal and reject or accept the proposal in writing within
a reasonable period of time, but in any event within thirty (30) days
after receipt of the proposal. The Project Executive may also request
that the Integrated Planning Team review the proposal within the
thirty-day (30) period and provide it with such additional information
as it requests. In the event that the proposal is rejected, the writing
shall include the reason for rejection. In the event that the proposal
is accepted, the parties shall mutually agree to terms of such change
and memorialize such by amending the applicable Exhibit pursuant to
Section 23 as applicable.
5.2. Additional Services. In the event that either Party wishes to
request that the other provide a service not currently provided
pursuant to this Agreement, such requesting Party's Project Executive
or his or her designee shall submit a written proposal to the other
Party's Project Executive and such proposal shall be considered
pursuant to the process and time frames set forth in subparagraph 5.1.
above. Any new Services to be performed pursuant to this Agreement
shall be memorialized in writing by the Parties by entering into an
Exhibit to this Agreement in substantially the form of Exhibit D-4.
6. AGREEMENT REGARDING CERTAIN COOPERATIVE OPPORTUNITIES
6.1. Cooperative Opportunities. Equifax and Intersections shall
cooperate in exploring the efficiency of pursuing the opportunities set
forth on Exhibits D (New Product Development Cooperation); D-1
(Extension Product Development); D-2 (Product Convergence Cooperation);
and D-3 (Marketing Channels Cooperation) (collectively the "Cooperative
Opportunities").
6.1.1. Commitment to Investigate. Each Party shall dedicate
an appropriate level of resources (as determined by the
respective Party, in its sole discretion) to investigate
the desirability of pursuing the Cooperative
Opportunities and may assign the Integrated Planning
Team to this function. The Parties shall (i) pursue
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each of the Cooperative Opportunities in the priorities
indicated by the "Commence Activity dates and the "Reach Go or
No-Go Decision" dates ("Decision Dates") set forth on Xxxxxxxx
X, X-0, X-0, and D-3, (ii) by the indicated Decision Dates
decide whether to terminate such project or continue to pursue
such project, (iii) if the decision is to continue to pursue
such project, jointly agree to the respective commitments of
each Party in a writing which will be added to this Agreement
as an Exhibit in substantially the form of Exhibit D-4, which
at a minimum shall include the following: (a) a description of
the service or product to be provided, (b) a description of
the obligations of each Party, (c) a determination of
ownership of the product or service, (d) how User Information
is to be treated, (e) a determination of the ownership of
customers relating to the Service, (f) a determination of the
applicability of privacy policies, (g) a license of any Marks
(h) a determination of ownership of any intellectual property
related to the Service and specifies any usage rights (i) how
costs incurred and revenues are to be allocated between the
Parties, (j) timetable for implementation, and (k) any other
specific requirements or additional terms applicable to the
Service and agreed to by the Parities.
6.2. No Other Obligation. Equifax and Intersections each
acknowledge and agree that (i) nothing contained in this Section 6 or
elsewhere in this Agreement obligates either Party to pursue any
Cooperative Opportunity beyond the specific limited obligations of
Section 6.1.1 and none is to be implied from any provision of this
Agreement; (ii) either Party may decide not to pursue any of the
Cooperative Opportunities; (iii) neither Party is obligated to enter
into any Exhibit or other Agreement with respect to any Cooperative
Opportunity and may in its absolute sole discretion choose not to; and
(iv) no obligation regarding any Cooperative Opportunity beyond those
specifically set forth in Section 6.1.1 exists and shall not exist
unless and until the Parties enter into a separate additional Exhibit
or other Agreement in writing executed by both Parties setting forth
such additional obligations with respect to such Cooperative
Opportunity.
6.3. Intersections' Business. Each of the Parties acknowledges and
agrees that the business as presently conducted by Intersections
presently includes the products, services and processes constituting
the Cooperative Opportunities identified on Exhibits D (New Product
Development Cooperation); D-2 (Product Convergence Cooperation); and
D-3 (Marketing Channels Cooperation).
6.3.1 Excluded Business. Each of the Parties acknowledges and agrees
that the business as presently conducted by Intersections does
not presently include the products and services constituting
Cooperative Opportunities identified on Exhibit D-1 (Extension
Product Development), and that the same do not, nor shall they
be construed to constitute, an agreed expansion of the
business as presently conducted by Intersections. If, and only
if, (i) Equifax agrees that it and Intersections shall pursue
any such Cooperative Opportunity and (ii) the Parties execute
any required exhibit or other written agreement indicating
their mutual agreement regarding such Cooperative Opportunity,
shall the business of Intersections include, or be deemed to
include, any such Cooperative Opportunity.
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6.4 Limitations. Notwithstanding any other provision of this
Agreement, Intersections agrees that if the Parties do not agree to
mutually pursue a Cooperative Opportunity identified in Group B of
Exhibit D (New Product Development Cooperation), or in Exhibit D-1
(Extension Product Development), Intersections shall not pursue such
opportunity without Equifax unless Equifax has given its consent in
writing to Intersections so pursuing such opportunity; provided,
however, that Intersections may pursue an opportunity included in Group
B of Exhibit D if it first presents to Equifax a written confirmation
(in a form reasonably satisfactory to Equifax) signed by a non-consumer
business customer requesting such product.
7. AGREEMENT REGARDING EQUIFAX CREDIT INFORMATION
7.1. Intersections shall use Equifax Credit Information as the sole
component of all of its existing and future one-bureau products that
require credit information, subject to the provisions of the Data
Agreement and the Credit Monitoring Agreement. In addition,
Intersections shall utilize Equifax Credit Information as one of the
two bureaus used in any of its dual bureau products, and as one of the
three bureaus used in any tri-bureau products requiring credit
information unless an Intersections client makes a specific request not
to include Equifax.
7.2. Simultaneously with entering into this Agreement,
Intersections and Equifax (or an Equifax Affiliate, shall enter into an
amendment to Agreement - Consumer Disclosure Service (the "Data
Agreement") in the form attached hereto as Exhibit E providing for
certain changes in the terms upon which Intersections receives Equifax
Credit Information.
7.3. Simultaneously with entering into this Agreement,
Intersections and Equifax (or an Equifax Affiliate) shall enter into an
agreement in a form substantially similar to that attached hereto as
Exhibit F (the "Credit Monitoring Agreement") pursuant to which Equifax
shall provide to Intersections Credit Monitoring Services, i.e., a
process whereby Equifax (or an Equifax Affiliate) monitors the credit
file of Intersections' customers and reports to Intersections specific
changes to the files which Intersections will then report to the
customer as a component of its monitoring products.
7.4. Intersections shall use its best efforts to transition all of
its existing one bureau and dual bureau reports products to use Equifax
Credit Information as its underlying component, not later than one
hundred and eighty (180) days after the Effective Date.
7.5. Intersections will on a monthly basis report to Equifax the
number of its one bureau and dual bureau report customers who have been
converted to Equifax and the number still to be converted.
7.6. Equifax will cooperate with Intersections in its transition
efforts including providing such reasonable assistance that
Intersections may request (subject to any legal or contractual
obligations restraining Equifax's actions).
8. AGREEMENT REGARDING EQUIFAX AUTHENTICATION SERVICES.
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8.1. Intersections shall use Equifax eIDverifier(TM) authentication
services as its exclusive online authentication service for all
websites maintained by it for the purpose of selling products, except
that Intersections may continue to utilize another service to
authenticate for the existing clients shown on Exhibit G.
9. AGREEMENT REGARDING WEBSITE HOSTING.
9.1. Simultaneously with entering into this Agreement,
Intersections and Equifax shall enter into a hosting agreement in a
form substantially similar to that attached hereto as Exhibit H whereby
Equifax shall provide webpage hosting services to Intersections on the
terms and for the fees set forth in such agreement.
10. FEES AND PAYMENT.
10.1. Fees. Intersections shall pay Equifax for all the Equifax
Services as described on the applicable Exhibits, and Equifax shall pay
Intersections for all the Intersections Services as described on the
applicable Exhibits, at the rates specified on each such Exhibit. In
addition, each Party shall pay to the other (i) any costs incurred by a
Party specifically required to be reimbursed/paid by the other Party,
(ii) any revenue share amount specified in this Agreement, and (iii)
any other amount agreed to by the parties to be paid.
10.2. Payments. The Parties shall render invoices monthly, as
applicable. All invoices submitted by either Party are due and payable
within thirty (30) days of the receipt of the invoice, subject to the
right of the Party receiving the invoice to withhold payment in the
event of a good faith dispute pursuant to Section 10.4. Late payments
shall accrue interest from the invoice date at the lesser of (i)
one-and-one-half percent (1 1/2%) per month and (ii) the highest rate
allowed by law. Subject to Section 10.4, if either Party fails to pay
any invoice within thirty (30) days after receipt of the invoice date,
and thereafter fails to make such payment within fifteen (15) days
after written notice from the invoicing Party of such failure, the
invoicing Party may, in addition to any other remedies available to it
under this Agreement, suspend performance of Services.
10.3. Credits. With respect to any amounts to be paid or reimbursed
by one Party to the other pursuant to this Agreement for any month, a
Party may, at its option, pay that amount to the other Party by giving
the other Party a credit against amounts otherwise payable. Any such
credit shall be clearly reflected on the invoice(s) submitted to the
other party for such month.
10.4. Remittances. Where any Service requires a Party to collect
funds on behalf of such other Party, the collecting Party shall (i)
duly collect all funds as agreed for the other Party, (ii) maintain
reasonable and customary accounting records showing the amounts
collected, any refunds or incomplete payments process, and (iii) pay
such amounts to the other Party in accordance with the timetable to be
agreed upon by the Parties and include with such payment a detailed
accounting with such payment.
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10.4.1 Remittances that are paid to a Party late shall be
subject to the interest rate set forth in Section 10.2 above,
which the collecting Party shall also pay to the represented
Party when remitting such collected funds.
10.5. Disputed Amounts. If a Party, in good faith, disputes any
amounts regarding the Services, or any other obligation under this
Agreement, such Party may withhold any such disputed amounts from any
amounts owed to the other Party pursuant to this Agreement, if the
problem giving rise to the dispute has not been resolved to the Party's
reasonable satisfaction by the time payment on such invoice is due. In
accordance with the resolution of the dispute, the Party shall pay to
the Party owed the amounts agreed upon to be paid pursuant to such
resolution. Regardless of any dispute, a Party shall remit to the other
the invoiced amount minus the disputed amount.
10.6. Taxes. Unless otherwise stated in an applicable Exhibit, the
costs and fees payable under such Exhibit shall be exclusive of any and
all sales, use, ad valorem, value added or similar taxes.
10.7. Additional Taxes. If an additional sales, use, privilege,
value added, excise, services or similar tax is assessed on the
provision of any of the Services, or any Deliverable relating to a
Service, however levied or assessed, the Party receiving the Service
shall be responsible for and pay the amount of any such tax. The Party
rendering the Service will add to any charges hereunder to which such
taxes apply, amounts equal to any such taxes, however designated or
levied, based upon such charges, or upon this Agreement or any Services
or items provided hereunder, or their use, and any such taxes or
amounts in lieu thereof shall be paid by the other Party in respect of
the foregoing. Invoices shall identify those Services that are subject
to tax.
10.8. Cooperation. The parties shall cooperate reasonably with each
other to determine accurately each Party's tax liability and to
minimize such liability to the extent legally permissible. To
substantiate any claimed exemptions, the Party claiming the exemption
shall supply to the other the appropriate exemption or resale
certificates.
10.9. Method of Payment. Unless otherwise stated in the applicable
Exhibit or otherwise agreed to by the parties, all amounts payable by
the parties for the services rendered by the other pursuant to this
Agreement shall be remitted in United States dollars in the form of a
wire transfer.
11. MANAGEMENT AND REPORTS
11.1. Integrated Planning Team. The Parties shall form and
participate in an Integrated Planning Team composed of three
representatives from each company for the following purposes: (i) to
provide leadership and direction for the relationship over the Term of
the Agreement; (ii) to perform the activities described in Section 6
regarding the Cooperative Opportunities, (iii) to participate in the
Dispute Resolution Process pursuant to Section 21, and (iv) to report
to Intersections and Equifax regarding each of the foregoing areas.
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11.1.1. The Integrated Planning Team shall meet periodically,
as shall be mutually agreed, to discuss issues that
arise in the performance of any Service or any other
obligation under this Agreement.
11.2. Project Executives and Managers. Prior to the Effective Date,
Intersections and Equifax will each designate a Project Executive to
whom all communications regarding the Parties' relationship under this
Agreement may be addressed and who has the authority to act for the
appointing Party and its subcontractors in connection with all aspects
of this Agreement.
11.3. Reports. Equifax and Intersections shall agree on the form of
reports that shall be provided with respect to the Equifax Services and
the Intersections Services and unless the parties otherwise agree, such
reports shall be described on each Exhibit with respect to the Service,
or obligation, to which it relates. In general, each Party will provide
reports to the other that reflect in detail (i) the quantities of
Services provided, (ii) revenues and cost associated therewith, and
(iii) evidence of compliance with any applicable performance criteria
or service level.
11.4. Use of Subcontractors. Each Party may engage subcontractors to
perform and deliver any part or portion of the Services. Each Party
shall remain primarily liable and obligated to the other Party for the
timely and proper performance of all of its obligations hereunder even
if such obligations are delegated to third-party subcontractors, and
for the proper and timely performance and actions of any person or
entity to which it delegates or subcontracts any such obligation.
12. OWNERSHIP OF WORK PRODUCT, TRADENAMES, AND TRADEMARKS
12.1. Ownership of Services. Except as otherwise provided herein or
in an Exhibit, or unless the Parties otherwise agree in writing, and
except for Confidential Information (which shall exclusively be
governed by Section 13) Equifax and Intersections, each acknowledges
and agrees that (i) each shall be the sole and exclusive owner of all
Intellectual Property relating to the Equifax Services, and the
Intersections Services, respectively. and (i) Marks (x) owned by the
Party as of the Effective Date, (y) created by it after the Effective
Date, or (z) assigned to it pursuant to Section 12.8,
12.1.1. No Transfer of Ownership. Nothing in this Agreement
is intended to transfer any ownership rights to any
Intellectual Property or Xxxx from one Party to another.
Title to and ownership of a Party's Intellectual
Property or Marks shall remain with the Party. Each
Party hereby acknowledges and agrees that it will not
use or apply to register any Intellectual Property
owned, or Xxxx used by the other Party, whether
registered or unregistered, or any other name, xxxx,
designation, logo, device or design similar to any Xxxx
of the other, except on Services and Deliverables
provided or produced for the other Party pursuant to
this Agreement and in accordance with the provisions of
this Agreement.
12.1.2. No Challenge to Ownership. Neither Equifax nor
Intersections will challenge the validity or ownership
of any Intellectual Property or Marks provided or
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originated by the other, nor assert any adverse claims of
ownership thereof, and each Party agrees that it will execute
and deliver to the other any and all documents necessary to
confirm the first Party's ownership rights therein
12.2. Ownership of Materials. The Parties shall agree with respect
to any Program Communications and Work Products to be produced pursuant
to this Agreement, which Party shall have and retain ownership and the
Intellectual Property rights (the nature and extent of such rights) in
any such Program Communications and Work Products that are created,
prepared or produced in connection with this Agreement and all such
Program Communications and Work Product shall remain the property of
the designated Party.
12.2.1. Any Program Communications and Work Products created,
prepared and produced jointly shall vest jointly, unless
the Parties otherwise agree in writing.
12.2.2. Notwithstanding Section 12.2.1, unless the Parties
otherwise agree in writing, any artwork, text, copy,
materials or original concepts of any kind that either
Party provides to the other ("Artwork"), whether for the
purpose of inclusion or use in the creation of the
Program Communications or Work Product or for any other
purpose, shall remain the exclusive property of the
providing Party, and Marks provided therein shall remain
the exclusive property of such Party. Each Party agrees
with respect to such Artwork and Marks, (i) that
consistent with the other Party may use any of its
Artwork or Marks incorporated into jointly produced and
owned Program Communications and Work Products as the
Parties have agreed such Party may use such Program
Communications and Work Products, (ii) a Party shall not
use the other Party's Artwork or Marks other than in
accordance with the terms of this Agreement, provided,
however, that Equifax understands that Intersections
works with credit grantors on marketing programs and
that certain materials developed for Equifax may be
adaptations of materials successfully used with such
other such programs, and materials developed for Equifax
may be adapted to such other programs.
12.3. Trademark Licenses. A Party may by including the specific
terms of such license in an Exhibit relating to a Service grant to the
other a non-exclusive license to use such of its Marks as it provides
to the other: (a) with respect to the Services to be performed pursuant
to such Exhibit and with respect to any Deliverables related thereto,
(b) on the Party's webpages in links to the other's websites in
connection with advertising such Services, (c) with respect to any
Cooperative Opportunity, as the Party's shall agree in writing pursuant
to Section 6, and (d) in any other manner approved in writing by the
owner of the Marks in connection with this Agreement.
12.3.1. Limitations. The licensee will use the Marks (i)
exactly in the form provided and in conformance with any
trademark usage policies or other directions provided to
such Party by the owner of the Marks, and (ii) only in
the United States of America and Canada. The licensee
will not take any action inconsistent with the owner's
ownership of the Marks, and any benefits accruing from
use of such Marks will automatically vest in the owner
of the Marks. The licensee will not form any combination
marks with the other Party's Marks.
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12.3.2. Product Identification and Labeling. The Parties will
agree as to each Service (including any related
Deliverables) to be provided hereunder, which Party's
Marks will apply to such Service. Where it is determined
that a Party's Marks shall be applied to a particular
Service, the same shall be indicated in the Exhibit
relating to that Service or otherwise in writing and the
terms of this Section 12 shall apply.
12.3.3. Termination of License. A Party may terminate any
trademark license granted in accordance with this
Section 12.3 with respect to one or more of its Marks,
if, in its sole discretion, the licensee's use of the
Marks tarnishes, blurs or dilutes the quality associated
with any of the Marks or the associated goodwill and
such problem is not cured within ten (10) days after
receipt of written notice of such complaint.
Alternatively, instead of terminating the license in
total, the owner may specify that the other Party may
utilize the Marks in a different manner, or, with
respect to Internet usage, that certain pages of the
licensee's website may not contain the Marks.
12.4. New Marks. In the event that pursuant to this Agreement, the
Parties agree to produce a new trade name or trademark to be associated
with a new product or service, the Parties shall in the Exhibit or
other writing memorizing the agreement regarding such new product or
service, indicate which Party shall have ownership of any such trade
names, trademarks, service marks or other associated intellectual
property.
12.5. Sublicensing Limits. No license rights granted pursuant to
this Agreement are sublicenseable. Notwithstanding the foregoing,
either Party may use third-party web hosts or web integrators, but all
actions or failures to act of the web hosts or web integrators, as the
case may be, that would be a breach of this Agreement, were the actions
or failures to act taken by the applicable Party, will be deemed a
breach of this Agreement.
12.6. No Other Licenses. Except as specifically provided herein or
in any Exhibit, neither Party grants to the other any right or license,
express or implied, in the other's intellectual property or Marks.
12.7. Survival. The provisions of this Section shall survive the
expiration or termination of this Agreement for any reason whatsoever,
and shall remain in full force and effect thereafter.
13. CONFIDENTIAL INFORMATION
13.1. Definition of Confidential Information. Each Party agrees that
all information supplied by one Party and its Affiliates and agents
(collectively, the "Disclosing Party") to the other ("Receiving Party")
including, without limitation, (i) source code, prices, databases,
hardware, software, programs, engine protocols, models, displays and
manuals, product plans and specifications, including, without
limitation, the selection, coordination, and arrangement of the
contents of such materials and (ii) any unpublished information
concerning research activities and plans, marketing or sales plans,
pricing or pricing strategies, operational techniques, strategic plans,
User Information, and unpublished financial information, including
information concerning revenues, profits and
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profit margins will be deemed confidential and proprietary to the
Disclosing Party, regardless of whether such information was disclosed
intentionally or unintentionally or marked as "confidential" or
"proprietary" ("Confidential Information").
13.2. Exclusions. Confidential Information will not include any
information or material, or any element thereof, to the extent any such
information or material, or any element thereof:
13.2.1. has been previously published or is published
hereafter, unless such publication is a breach of this
Agreement or a similar non-disclosure agreement;
13.2.2. was already known to the Receiving Party prior to
being disclosed by or obtained from the Disclosing Party
as evidenced by written records kept in the ordinary
course of business of or by proof of actual use by the
Receiving Party;
13.2.3. has been or is hereafter rightfully received by the
Receiving Party from a third person (other than the
Disclosing Party) without restriction on disclosure and
without breach of this Agreement; or
13.2.4. has been independently developed by the Receiving
Party.
13.3. Presumption. It will be presumed that any Confidential
Information in a Receiving Party's possession is not within exceptions
in subsections 13.2.2, 13.2.3, or 13.2.4 above, and the burden will be
upon the Receiving Party to prove otherwise by records and
documentation.
13.4. Treatment of Confidential Information. Each Party recognizes
the importance of the other's Confidential Information. In particular,
each Party recognizes and agrees that the Confidential Information of
the other is critical to their respective businesses and that neither
Party would enter into this Agreement without assurance that such
information and the value thereof will be protected as provided in this
Section 13.4 and elsewhere in this Agreement. Accordingly, each Party
agrees as follows:
13.4.1. The Receiving Party will hold any and all
Confidential Information it obtains in strictest
confidence and will use and permit use of Confidential
Information solely for the purposes of this Agreement;
13.4.2. The Receiving Party may disclose or provide access to
its responsible employees and/or Affiliates who have a
need to know and may make copies, of Confidential
Information only to the extent reasonably necessary to
carry out its obligations hereunder;
13.4.3. The Receiving Party currently has, and in the future
will maintain in effect and enforce, rules and policies
to protect against access to or use or disclosure of
Confidential Information other than in accordance with
this Agreement, including without limitation written
instructions to and agreements with employees and agents
to ensure that such employees and agents protect the
confidentiality of Confidential Information. The
Receiving Party expressly will instruct its employees
and agents not to use or to disclose Confidential
Information to third
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parties, including without limitation customers,
subcontractors or consultants, except in accordance with
the terms of this Agreement unless the Disclosing Party
has given its prior written consent to such disclosure;
13.4.4. Each Party, at its own expense, will take all steps,
including, without limitation the initiation and
prosecution of actions at law or in equity, necessary or
appropriate to prevent use or disclosure, and upon any
unauthorized disclosure further unauthorized disclosure
or use, of any Confidential Information received or
obtained by it except as expressly permitted by the
terms of this Agreement;
13.4.5. Except as otherwise provided in this Agreement,
neither Party will copy (other than regular backup
copies), modify, disassemble, reverse engineer or
decompile any of the other's Confidential Information,
including, its intellectual property;
13.4.6. Neither Party will make any use whatsoever at any
time of the other's Confidential Information except as
expressly authorized in this Agreement; and
13.4.7. The Receiving Party will notify the other immediately
of any unauthorized disclosure or use, and will
cooperate with the Disclosing Party to protect all
proprietary rights in and ownership of its Confidential
Information.
13.5. Compelled Disclosures. To the extent required by applicable
law or by lawful order or requirement of a court, governmental
authority or self-regulatory agency having competent jurisdiction over
the Receiving Party, the Receiving Party may disclose Confidential
Information, including User Information, in accordance with such law or
order or requirement, subject to the following conditions: As soon as
possible after becoming aware of such law, order or requirement and
prior to disclosing Confidential Information, pursuant thereto, the
Receiving Party will so notify the Disclosing Party in writing and, if
possible, the Receiving Party will provide the Disclosing Party notice
not less than five (5) business days prior to the required disclosure.
The Receiving Party will use reasonable efforts not to release
Confidential Information, pending the outcome of any measures taken by
the Disclosing Party to contest, otherwise oppose or seek to limit such
disclosure by the Receiving Party and any subsequent disclosure or use
of Confidential Information that may result from such disclosure. The
Receiving Party will cooperate with the Disclosing Party regarding such
measures. Notwithstanding any such compelled disclosure by the
Receiving Party, such compelled disclosure will not otherwise affect
the Receiving Party's obligations hereunder with respect to
Confidential Information so disclosed.
13.6. Return of Confidential Information. Upon the request of either
Party or upon the expiration or termination of this Agreement for any
reason, the Receiving Party will promptly (i) return or destroy, at the
Disclosing Party's option, all originals and copies of all documents
and materials it has received containing the Disclosing Party's
Confidential Information, (ii) deliver or destroy, at the Disclosing
Party's option, all originals and copies of all summaries, records,
descriptions, modifications, negatives, drawings, adoptions and other
documents or materials, whether in writing or in machine-readable form,
prepared by the Receiving Party, prepared under its direction, or at
its request from the documents
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and materials referred to in subparagraph (i); and (iii) provide a
notarized written statement to the Disclosing Party certifying that all
documents and materials referred to in subparagraphs (i) and (ii) have
been delivered to the Receiving Party or destroyed, as requested by the
Disclosing Party.
14. USER INFORMATION
14.1. Ownership. The Parties shall agree in writing with respect to
each Service, which Party shall be deemed the owner of the User
Information collected from Consumers purchasing or accessing of the
Service. The Parties may agree that due to the joint nature of the
Service, both parties shall jointly be the owners of such User
Information. Determinations relating to User Information shall be
included in the Exhibit relating to a Service.
14.2. User Privacy. The parties shall agree for each Service which
Party's privacy policy shall apply and may agree that compliance with
both Intersections' and Equifax' policies is required. At a minimum,
the Equifax Services and the Intersections Services shall comply with
any applicable law, including any applicable notice and opt out
requirements. Determinations relating to User Privacy shall be included
in the Exhibit relating to a Service and all User Information shall be
treated accordingly.
14.3. Treatment of User Information. Without limiting any other
warranty or obligation specified in this Agreement, and in particular
the confidentiality provisions of Section 13, during the term of this
Agreement and thereafter in perpetuity, Equifax and Intersections both
agree not to gather, store, or use any User Information belonging to
the other in any manner not agreed to by the owner of the User
Information and, each agrees not to disclose, distribute, sell, share,
rent or otherwise transfer any User Information to any third party,
except as expressly provided in this Agreement, or in any Exhibit, or
as the Party that owns the User Information may have expressly and
reasonably directed in advance in writing.
14.4. Retention of User Information. Except as expressly permitted
in this Agreement, a Party will not retain any User Information
belonging to the other Party for any period longer than necessary for
the retaining Party to fulfill its obligations under this Agreement. As
soon as the retaining Party no longer needs to retain such User
Information in order to perform the Services or any other obligation
under this Agreement, the retaining Party shall return such User
Information to the deemed owner of such information. Notwithstanding
the foregoing, either Party may retain User Information in aggregate
statistical form for a period of three (3) years following termination
of this Agreement.
14.5. Security of User Information. Each Party will maintain and
enforce safety and physical security procedures with respect to its
access and maintenance of User Information that are (a) at least equal
to industry standards for such types of locations, and (b) which
provide reasonably appropriate technical and organizational safeguards
against accidental or unlawful destruction, loss, alteration or
unauthorized disclosure or access of User Information and all other
data owned by a Party and accessible by the other Party under this
Agreement. Without limiting the generality of the foregoing, each Party
will take all reasonable measures to secure and defend its location and
equipment
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against "hackers" and others who may seek, without authorization, to
modify or access its systems or the information found therein without
its consent. Both parties will periodically test their systems for
potential areas where security could be breached. Both parties will
report to the other Party immediately any breaches of security or
unauthorized access to their respective systems that they detect or
become aware of. Both parties will use diligent efforts to remedy such
breach of security or unauthorized access in a timely manner.
14.5.1. All User Information must be stored in a physically
secure environment that protects it from unauthorized
access, modification, theft, misuse and destruction. In
addition, to the general standards set forth above, each
Party will maintain an adequate level of physical
security controls over its facility including, but not
limited to, appropriate alarm systems, fire suppression,
access controls (including off-hour controls) which may
include visitor access procedures, security guard force,
and video surveillance.
15. PROVISIONS RELATING TO NETWORKS AND SYSTEMS
15.1. Connectivity. The Parties acknowledge that one or more of the
Services may require the parties to establish connectivity between
their respective system networks. For any such connectivity or other
actions required by this Agreement that relate to a Party's network,
webpages or internet access, the following provisions shall apply
unless the Parties agree otherwise in writing.
15.2. Policies. Each Party shall deliver to the other copies of its
respective network and internet policies and shall comply with such
applicable policies when connecting to the other's network system,
except if any such policy conflicts with the terms of this Section 15,
the terms of this Section shall prevail and, the effected Party shall
adjust its practices to bring them in line with the terms of this
Section.
15.3. Internet Service Standards. Both parties shall, when
connecting to and or transmitting through the Internet is required to
provide a Service or other obligation hereunder, comply with the
Internet Service Standards attached hereto as Exhibit I.
15.4. No Disabling Devices or Viruses. Each Party will use its best
efforts to ensure that any device that it connects to the other's
network, server, or any system, or any deliverable that it provides to
the other that is intended to connect to any network, server, or system
of the other, shall not contain any program, routine, device, or other
undisclosed feature, including, without limitation, a time bomb, virus,
software lock, drop dead device, malicious logic, worm, Trojan horse,
or trap door that is designed to delete, deactivate, interfere with, or
that is intended to provide access or produce modifications not
authorized by the receiving Party (collectively, "disabling
procedures"). Such warranty is intended to apply regardless of whether
such disabling procedures are intended or authorized to be included in
such connection or deliverable by the receiving Party. A Party will
immediately notify the other if it becomes aware that any such
disabling procedures have been, or may have been, transferred to the
other's network, server, or other system, or may have been included in
any Deliverable.
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15.5. Content License. Subject to specific agreements to be
memorialized in an Exhibit, each Party hereby grants to the other a
non-exclusive license to use, reproduce, distribute, create derivative
works of, publicly perform, publicly display and digitally perform the
"Internet Content" (defined as all content or information including
without limitation any text, music, sound, photographs, video,
graphics, data or software, in any medium, provided by a Party to the
other Party for display on a Webpage or server, or transmitted via the
Internet in connection with providing a Service hereunder or in
conjunction with any other obligation hereunder). A Party will not
provide any Internet Content that: (a) infringes upon any intellectual
property or publicity/privacy right; (b) violates any law or
regulation; (c) is defamatory, obscene, harmful to minors or child
pornographic; (d) contains any viruses, Trojan horses, worms, time
bombs, cancelbots or other computer programming routines that are
intended to damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal information; or
(e) is materially false, misleading or inaccurate. A Party transferring
Internet Content shall promptly notify the Party receiving the Internet
Content if it discovers any mistakes, omissions, errors, viruses, or
other defects in the Internet Content and will promptly inform the
receiving Party of: (i) the date of discovery; (ii) the method of
transmission or causation; and (iii) the corrective action taken by the
transferring Party.
15.6. Ownership of Domain Names. Each Party will retain all right,
title and interest in and to, and ownership of, their own respective
domain names, and the other Party will not acquire any right, title, or
interest therein. Each Party acknowledges that the domain names will be
associated with the respective parties and/or their Affiliates and that
each Party will build up substantial goodwill in the domain names and,
accordingly, that the domain names will be a valid trademark and/or
service xxxx of the respective Parties and/or their Affiliates.
15.7. Cookies. Neither Party shall engage in the use of such files,
text, code, web bugs, GIFs or other items which track user behavior
("Cookies") on any server or webpages used to provide Services to the
other in any manner without the other Party's prior written consent. If
a Party does provide such written consent, it may place reasonable
conditions and restrictions on the use of such Cookies.
15.8. Export Controls. The Parties acknowledge that if any of the
Services or any related technical information, documents and materials,
are subject to export controls under the U.S. Export Administration
Regulations and/or the Parties will (i) comply strictly with all legal
requirements established under those controls; (ii) cooperate fully
with any official or unofficial audit or inspection that relates to
those controls conducted by the U.S. Export Administration or such
other governing body with jurisdiction over such matters; and (iii) not
export, re-export, divert or transfer, directly or indirectly, any such
item to countries that are embargoed by Executive Order without the
prior written authorization of Equifax and the U.S. Commerce Department
or such other governing body with jurisdiction over such matters.
16. ANNOUNCEMENTS, PUBLICITY AND SOLICITATION
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16.1. Announcements; Publicity. Subject to specific agreements
regarding advertising and marketing relating to a Service, to be
memorialized in an Exhibit, during the term and at all times after the
termination or expiration of this Agreement, neither Party shall make
any media release or other public announcement relating to or referring
to this Agreement or the Services provided under this Agreement without
the other's prior written consent. Except pursuant to the terms of the
Agreement including applicable Exhibits, neither Party shall acquire
any rights to use, and shall not use, without the other's prior written
consent, the terms or existence of this Agreement, the Marks of the
other, their Affiliates, employees, directors, shareholders, assigns,
successors or licensees: (a) in any advertising, publicity, press
release, client list, presentation or promotion; (b) to express or to
imply any endorsement of the services; or (c) in any manner other than
expressly in accordance with this Agreement.
16.2. No Advertising or Links. Neither Party shall include any
advertising, promotions, merchandising, or marketing services
(including, but not limited to, banners, links, marketing services,
promotions, product tie-ins, or product or service merchandising) to
third parties in or on any electronic connectivity, or webpage provided
to the other, without prior written consent from the other Party.
17. REPRESENTATIONS AND WARRANTIES
17.1. Mutual Representations and Warranties. Equifax, Intersections
Inc., and CreditComm Services LLC, each, respectively, represents and
warrants with respect to themselves as follows: (a) such Party is duly
organized, validly existing, and in good standing under the laws of the
jurisdiction in which it is organized, and has the power and authority
to carry on its business as now being conducted, (b) such Party has the
financial resources, personnel and organizational resources to perform
its obligations under this Agreement and will notify the other of any
change in such Party's circumstances that would materially adversely
impact its ability to perform its obligations under this Agreement, (c)
there is no action, suit or proceeding before or by any court or
governmental agency or body or otherwise, now pending, or to the
knowledge of such Party, threatened against such Party or its property
that may result in a material adverse change in the condition,
financial or otherwise or business prospects of such Party, and (d)
this Agreement has been duly executed and delivered on behalf of such
Party and is a legal and binding obligation of such Party enforceable
against it in accordance with the terms of this Agreement except (i) as
the same may be limited by bankruptcy, insolvency, reorganization, or
other laws or equitable principles relating to or affecting the
enforcement of creditors' rights and (ii) that the availability of
equitable remedies including specific performance is subject to general
equitable principles applied at the discretion of a court.
17.2. Representations of Intersections. In connection with its
activities hereunder, Intersections Inc. and CreditComm Services LLC
(collectively referred to below as "Intersections") each represents and
warrants to Equifax that:
17.2.1. Intersections does and will continue to comply fully
with the all applicable statutes, rules and regulations in any
jurisdiction in which it offers and provides Intersections
Services, including without limitation the Fair Credit
Reporting Act;
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17.2.2. Intersections will comply with all the terms and
conditions set forth in this Agreement and will perform the
Intersections Services in accordance with the Performance
Standards set forth in this Agreement and any Exhibits;
17.2.3 Intersections has obtained all required third-Party,
governmental and regulatory licenses, registrations and
approvals as may be necessary for it to offer and provide the
Intersections Services under the terms of this Agreement;
17.2.4 Any Network Connectivity or Internet related activity
relating to any Intersections Service and any Internet Content
provided by Intersections under this Agreement, shall comply
fully with the provisions of Section 15 (Provisions Relating
To Networks and Systems) and Exhibit-I (Internet Service
Standards) and do not and will not infringe or violate the
intellectual property rights or any other rights of any nature
of any third party, or contain defamatory or indecent matter.
17.3. Representations of Equifax. In connection with its activities,
hereunder, Equifax represents and warrants to Intersections Inc and to
CreditComm Services LLC that:
17.3.1. Equifax does and will continue to comply fully with
all applicable statutes, rules and regulations in any
jurisdiction in which it offers and provides Equifax Services
including without limitation the Fair Credit Reporting Act.;
17.3.2. Equifax will comply with all the terms and conditions
set forth in this Agreement and will perform the Equifax
Services in accordance with the Performance Standards set
forth in this Agreement and any Exhibits;
17.3.3. Equifax has obtained all required third-party,
governmental and regulatory licenses, registrations and
approvals as may be necessary for it to offer and provide the
Equifax Services under the terms of this Agreement;
17.3.4. Any Network Connectivity or Internet related activity
relating to any Equifax Service and any Internet Content by
Equifax provided under this Agreement shall comply fully with
the provisions of Section 15 (Provisions Relating To Networks
and Systems) and Exhibit-I (Internet Service Standards), and
do not and will not infringe or violate the intellectual
property rights or any other rights of any nature of any third
party, or contain defamatory or indecent matter.
17.4. Intellectual property. Each Party represents and warrants that
it has good and clear title to all Marks that it may provide to the
other to use in connection with any Service or this Agreement and that
use thereof by the other Party pursuant to this Agreement, in
connection with the Services will not violate or infringe the rights of
any third party, including, without limitation, those rights related to
patent, trademark, or service xxxx infringement and unfair competition.
18. INSURANCE
18.1 Insurance to be Maintained by Both Parties. Intersections and
Equifax each agree to maintain insurance of the kinds and limits set
forth below:
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18.1.1 Workers' compensation coverage, including
occupational disease and employer's liability insurance, in
limits and with coverage as required by the applicable laws of
each jurisdiction in which it does business, but in no event,
with respect to employer's liability insurance, less than the
following limits:
(A) bodily injury by accident: $1,000,000 per
accident, and
(B) bodily injury by disease: $1,000,000 per
employee, and
(C) bodily injury by disease: $1,000,000 policy
Limit
18.1.2 Commercial general liability insurance which includes
coverage for premises and operations liability, independent
contractor liability, blanket contractual liability, cross
liability coverage, separation of insureds in amounts not less
than the following limits:
(A) $2,000,000 general aggregate,
(B) $2,000,000 bodily injury and property damage
combined single limit each occurrence.
18.1.3 Professional Liability insurance covering the
Services performed for Equifax and its customers with limits
of liability of not less than $1,000,000 each claim and
$1,000,000 aggregate.
18.1.4 Automobile Liability and Property Damage Insurance,
including coverage on owned, hired, non-owned automobiles and
loaned vehicles, with Bodily Injury and Property Damage limits
of not less than One Million Dollar ($1,000,000) per
occurrence combined single limit.
18.2 Each such policy shall be written on an occurrence basis,
except for the professional liability coverage which shall be written
on a claims made basis. Each policy shall contain a clause requiring
the insurance carrier to notify the Party which is not the policy
holder, Intersections or Equifax, respectively, not less than thirty
(30) days prior to the termination or material modification of any such
policy. Each Party shall provide to the other with its insurance
carriers' Certificates of Insurance that all insurance required is in
force.
18.3 Each Party shall have its insurance carrier or carriers
certify to the other Party that all insurance required by this
Agreement is in force, such certificates shall stipulate that the
insurance will not be canceled, unrenewed or substantially changed
without thirty (30) days' prior notice by certified mail to such other
Party which is not the policy holder. A Party shall, on request, permit
the other Party to examine its original insurance policies relating to
the insurance required by this Agreement.
18.4 Either Party may carry, at its own, respective expense, such
additional insurance as it may deem necessary or desirable. Neither,
Intersections nor Equifax shall be deemed to be relieved of any
responsibility arising under or related to this Agreement
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by the fact that it carries insurance, and no such responsibility shall
be deemed in any way limited by the fact of such insurance.
19. LIABILITY; INDEMNIFICATION
19.1. Intersections Indemnification. Intersections and CreditComm
Services Inc. jointly and severally agree to indemnify, defend and hold
harmless the Equifax and its directors, officers, employees and agents
(the "Affected Indemnitees") from and against any and all damage, loss,
liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses)
in connection with any and all actions or threatened actions
("Indemnifiable Losses") incurred or suffered by any of the Affected
Indemnitees arising from, related to or associated with (i) any claim,
complaint, action, proceeding, counterclaim or offset incurred in
connection with Intersection's provision of or failure to provide any
of the Intersections Services, or any feature thereof, including, but
not limited to, any claim by any third party arising out of the use of
or quality of any materials or Services provided by Intersections; (ii)
Intersections, its employees, officers, directors, subcontractors, or
agents failure to perform in accordance with any of the terms and
conditions of this Agreement, including but not limited to, breach of
any of the representations, warranties, and covenants made herein by
Intersections or any of its related parties; and (iii) any violation by
Intersections of applicable federal, state or local laws or
regulations, including but not limited to Federal Communications
Commission or Federal Trade Commission rules or regulations.
19.2. Equifax Indemnification. Equifax agrees to indemnify, defend
and hold harmless Intersections Inc. and CreditComm Services LLC
(hereinafter collectively "Intersections") their directors, officers,
employees and agents (the "Intersections Indemnitees") from and against
any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable
attorneys' fees and expenses) in connection with any and all actions or
threatened actions ("Indemnifiable Losses") incurred or suffered by any
of the Intersections Indemnitees arising from, related to or associated
with (i) any claim, complaint, action, proceeding, counterclaim or
offset incurred in connection with Equifax's provision of or failure to
provide any of the Equifax Services, or any feature thereof, including,
but not limited to, any claim by any third party arising out of the use
of or quality of any materials or Services provided by Equifax; (ii)
Equifax, its employees, officers, directors, subcontractors, or agents
failure to perform in accordance with any of the terms and conditions
of this Agreement, including but not limited to, breach of any of the
representations, warranties, and covenants made herein by Equifax or
any of its related parties; and (iii) any violation by Equifax of
applicable federal, state or local laws or regulations, including but
not limited to Federal Communications Commission or Federal Trade
Commission rules or regulations.
19.3. Insurers. No insurer or any other third-party shall be, by
virtue of the foregoing indemnification provisions, (i) entitled to a
benefit it would not be entitled to receive in the absence of such
provisions, (ii) relieved of the responsibility to pay any claims to
which it is obligated, or (iii) entitled to any subrogation rights with
respect to any obligation hereunder.
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19.4. Indemnification Process. The Party seeking indemnification
shall notify the indemnifying Party of any claim under this Article
within thirty (30) days (or such shorter period as may be required to
respond to a third party claim) after receipt of notice. A Party
required to indemnify the other Party under this Agreement shall have
no obligation for any claim under this Section if:
19.4.1. the indemnified Party fails to notify the
indemnifying Party of such claim as provided above, but
only to the extent that the defense of such claim is
prejudiced by such failure;
19.4.2. the indemnified Party fails to tender control of the
defense of such claim to the indemnifying Party; or
19.4.3. the indemnified Party fails to provide the
indemnifying Party with all reasonable cooperation in
the defense of such claim (the cost thereof to be borne
by the indemnifying Party) but only to the extent that
the defense of such claim is prejudiced by such failure.
19.5. Consent. The indemnifying Party shall have no obligation for
any claim under this Agreement if the indemnified Party makes any
admission or settlement regarding such claim without the prior written
consent of the indemnifying Party, which consent shall not be
unreasonably withheld.
19.6. Participation. The indemnified Party shall have the right (but
not the obligation) to participate in such defense or settlement, in
which event such indemnified Party shall pay its attorneys' fees In
connection with such participation.
19.7. CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL EITHER EQUIFAX OR
INTERSECTIONS, OR ANY OF THEIR RESPECTIVE AFFILIATES, HAVE ANY
LIABILITY, WHETHER BASED ON CONTRACT, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE OR STRICT LIABILITY), WARRANTY OR ANY OTHER
LEGAL OR EQUITABLE GROUNDS, FOR ANY PUNITIVE, CONSEQUENTIAL, INDIRECT,
EXEMPLARY, SPECIAL OR INCIDENTAL LOSS OR DAMAGE SUFFERED BY THE OTHER
ARISING FROM OR RELATED TO ANY SERVICE OR THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION, LOSS OF PROFITS, INTEREST OR REVENUE, OR
INTERRUPTION OF BUSINESS, EVEN IF SUCH PARTY HAS BEEN INFORMED OF OR
MIGHT OTHERWISE HAVE ANTICIPATED OR FORESEEN THE POSSIBILITY OF SUCH
LOSSES OR DAMAGES. NOTWITHSTANDING THE FOREGOING, ANY DAMAGES AWARDED
OR OBTAINED (WHETHER BY SETTLEMENT, COMPROMISE OR JUDGMENT) AS A RESULT
OF THIRD PARTY CLAIMS SHALL BE CONSIDERED DIRECT DAMAGES FOR PURPOSES
OF THIS AGREEMENT.
20. DISPUTE RESOLUTION
20.1. Procedure. Any dispute between the Parties either with respect
to the interpretation of any provision of this Agreement or with
respect to the performance by Intersections or by Equifax hereunder
shall be resolved as specified in this Section.
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20.1.1. Integrated Planning Team. A Party shall by written
notice to the other Party submit a dispute to the
Integrated Planning Team for resolution. Such written
request shall specify in reasonable detail (i) the
nature of the dispute, (ii) the approximate dollar
amount at issue, and (iii) the requested resolution.
20.1.2. The Integrated Planning Team shall meet (which may
via Conference call) as soon as possible, but not later
than ten (10) business days after the receipt of the
notice, and as often as necessary thereafter, as
mutually agreed to, to gather and furnish to each Party
information with respect to the matter in issue that is
appropriate and germane to its resolution.
20.1.3. The Integrated Planning Team shall discuss the
problem and negotiate in good faith in an effort to
resolve the dispute.
20.2. Project Executive. If the Integrated Planning Team does not
resolve the dispute within thirty (30) days after the date of receipt
by a Party of a notice of submission of a dispute to the Integrated
Planning Team for resolution, the members of the Integrated Planning
Team shall report to their respective Project Executives and the
dispute shall be remitted to the Project Executives for resolution. The
Project Executives shall discuss the problem and negotiate in good
faith in an effort to resolve the dispute within thirty (30) days after
the referral to them.
20.3. If the Project Executives do not resolve the dispute within
such thirty (30) day period referenced in Section 20.2 above, then the
Party who presented the dispute shall be free to pursue any other
remedies available to it.
20.4. Continued Performance. The Parties agree to continue
performing their respective obligations under the Agreement (including
the Exhibits and any Addendum) while any dispute is being resolved
unless and until such obligations are terminated or expire in
accordance with the provisions of the Agreement.
21. TERM; TERMINATION; SURVIVAL
21.1. Term. The term of this Agreement will begin as of the
Effective Date and will expire five (5) years from the Effective Date,
unless sooner terminated as provided below. This Agreement will renew
automatically for additional two-year terms, unless either Party
provides written notice to the other twelve (12) months prior to any
termination date that it wishes the Agreement to terminate and not
renew.
The date on which this Agreement terminates in its entirety by
expiration or otherwise shall be the "Termination Date".
21.2. Partial Termination. Notwithstanding Section 21.1 above,
either Equifax with respect to an Intersections Service, or
Intersections with respect to an Equifax Service, as the recipient of a
particular Service, may, at its option, upon no less than sixty (60)
days prior written notice to the other (or such other period as the
parties may mutually agree in writing), direct the other to discontinue
such Service. In the event of any termination with respect to one or
more, but less than all, Services to be provided hereunder, this
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Agreement will continue in full force and effect with respect to any
Services not terminated.
21.3. Partial Termination Due to Breach. Notwithstanding Section
21.1 above, either Equifax or Intersections, as the provider or
recipient of a particular Service, may terminate a particular service
being provided under an applicable Exhibit if the other Party
materially breaches any of the terms hereof or of such applicable
Exhibit and such breach is not cured within thirty (30) days after
written notice of breach is delivered to the breaching Party; provided,
however, that if the breach is not capable of being cured within such
thirty (30) day period and the breaching Party is proceeding to cure
the breach with reasonable diligence, and has provided prior to the end
of such thirty-day period written notice to the other Party detailing
its efforts to cure the breach and when it anticipated completion of
the cure, the cure period shall be extended an additional thirty (30)
days.
21.4. Termination. Notwithstanding Section 21.1 above, this
Agreement may be terminated in its entirety in accordance with any of
the following:
21.4.1. By Agreement. Upon written agreement of the parties;
21.4.2. Material Breach. By either Intersections or Equifax
for material breach by the other of any of the terms
hereof if the breach is not cured within thirty (30)
days after written notice of breach is delivered to the
breaching Party; provided, however, that if the breach
is not capable of being cured within such thirty (30)
day period and the breaching Party is proceeding to cure
the breach with reasonable diligence, the cure period
shall be extended an additional thirty (30) days;
21.4.3. Insolvency. By either Intersections or Equifax, upon
written notice to the other if the other becomes
insolvent or makes an assignment of substantially all of
its assets for the benefit of creditors, or is placed in
receivership, reorganization, liquidation or bankruptcy;
21.4.4. Change of Control of Intersections. By Equifax, upon
written notice to Intersections pursuant to Section 3.8
(relating to Restricted Purchasers) of a certain Amended
and Restated Stockholders' Agreement dated as of
November ____, 2001 by and among, Intersections, CD
Holdings Inc., (an Affiliate of Equifax), and those
other stockholders of Intersections named as signatures
thereto; or
21.4.5. Force Majeure Event. Subject to Section 23, by either
Party due to a Force Majeure Event (as defined in
Section 23 below) impacting the other Party's
performance hereunder.
21.5. Upon any termination or expiration pursuant to this Section
21, Equifax and Intersections shall be compensated for all Services
performed through the Termination Date in accordance with the
provisions of this Agreement.
21.6. Upon termination or expiration of this Agreement (or an
Exhibit, as the case may be), all rights and obligations of the Parties
under this Agreement (or such Exhibit, as the
-22-
case may be) will immediately cease and terminate (except for the
rights and obligations pursuant to SECTIONS 10, 12, 13, 14, 19, 20,
25.5, AND 25.8 and the definitions required thereby, which will survive
such termination or expiration), and neither Party will have any
further obligation to the other Party with respect to this Agreement
(or such Exhibit, as the case may be), except (i) for fees and
reimbursable expenses payable to the other Party accrued but unpaid at
the date of termination or expiration, and (ii) as set forth in the
provisions of this Agreement which are specifically designated herein
as surviving such termination or expiration.
22. AMENDMENT AND WAIVER.
This Agreement may not be altered or amended, nor may any rights hereunder be
waived, except by an instrument in writing executed by the Party or Parties to
be charged with such amendment or waiver. No waiver of any terms, provision or
condition of or failure to exercise or delay in exercising any rights or
remedies under this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further or continuing waiver of any such term, provision,
condition, right or remedy or as a waiver of any other term, provision or
condition of this Agreement.
23. FORCE MAJEURE.
Neither Party shall be liable for any default or delay in the performance of its
obligations hereunder (except for the payment of money) if and to the extent
such default or delay is caused, directly or indirectly, by acts of God,
governmental acts, accidents, wars, terrorism, riots or civil unrest, labor
disputes, fires, storms, earthquakes, floods or elements of nature, or any other
cause beyond the reasonable control of such Party, provided such default or
delay could not have been prevented by reasonable precautions and cannot
reasonably be circumvented by the nonperforming Party through the use of
commercially reasonable alternative sources, workaround plans or other means
(individually, a "Force Majeure Event"). Upon the occurrence of a Force Majeure
Event, the nonperforming Party will be excused from any further performance or
observance of the obligations so affected for as long as such circumstances
prevail and such Party continues to use commercially reasonable efforts to
recommence performance or observance whenever and to whatever extent possible
without delay. Any Party so delayed in its performance will immediately notify
the other by telephone (to be confirmed in writing within five (5) days of the
inception of such delay) and describe at a reasonable level of detail the
circumstances causing such delay. If any Force Majeure Event substantially
prevents, hinders, or delays performance of any Service for more than fifteen
(15) consecutive days, then the Party receiving the Service may procure such
Services from an alternate source (whereupon the fees related to that Service
hereunder shall be reduced accordingly. If any Force Majeure Event continues for
more than sixty (60) consecutive days, then the Party receiving the Service may
terminate this Agreement as to the Effected Service as of a date specified by
such Party in a written notice of termination to the other Party.
24. AUDITS
Either Party may audit the other not more often than once in any twelve (12)
month period for the purpose of determining (i) compliance with the terms of
this Agreement, or (ii) the
-23-
accuracy of xxxxxxxx and or remittances. A party (the "Auditing Party") may
initiate an audit by giving to the other Party no less than ten (10) business
days written notice of its request to audit. The Parties shall agree on the
dates, time and scope of the audit. Such audit may include, interviews of
relevant personnel and review of documentation. Any such audit will be performed
in coordination with the management of the Party being audited and shall occur
during the normal business hours of such Party. The Party being audited shall
provide all information reasonably requested by the Auditing Party in connection
with any such audit. The Auditing Party shall comply with all of the other
Party's rules and procedures regarding access to its premises and records.
25. GENERAL PROVISIONS
25.1. Assignment; Parties in Interest. Neither of the Parties hereto
may assign its rights or delegate any of its duties under this
Agreement without the prior written consent of the other Party. This
Agreement shall be binding upon, and shall inure to the benefit of, the
Parties hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement, express or implied, is intended to
confer any benefits, rights or remedies upon any person or entity other
than Equifax and the Equifax Indemnitees and Intersections and the
Intersections Indemnitees under Section 19 hereof.
25.2. Conflicts Between this Agreement and an Exhibit. As long as
any Exhibit remains in effect, the terms of this Agreement shall govern
such Exhibit. If any provision of an applicable Exhibit conflicts with
a provision of this Agreement, the provision of such Exhibit will
control; provided, however, that in no event shall the term for the
provision of any Service under this Agreement or an Exhibit extend
beyond the Termination Date. Obligations pursuant to separately
executed agreements, i.e., the Data Agreement, the Credit Monitoring
Agreement and the Hosting Agreement, shall be governed by the
respective terms of those respective agreements.
25.3. Applicability to Affiliates. Equifax and Intersections shall
each cause their Affiliates to (a) comply with this Agreement and the
Exhibits hereto and (b) perform the Services described on the Exhibits
hereto. From time to time after the date hereof, Equifax and
Intersections may change which of their Affiliates shall provide or
receive services hereunder, provided that such changes do not
materially change the nature of the Services being provided.
25.4. Independent Contractors. Each of Intersections and Equifax is
an independent contractor. Neither Party shall have any authority to
bind the other Party unless expressly agreed in writing. Nothing in
this Agreement shall be construed to create a partnership, agency or
employer-employee relationship between Intersections and Equifax.
25.5. Notices. All notices and communications under this Agreement
shall be in writing and shall be deemed to have been given (a) when
received, if such notice or communication is delivered by facsimile, or
hand delivery, (b) one (1) business day after recognized or overnight
courier, and (c) three (3) business days after mailing if such notice
or communication is sent by United States registered or certified mail,
return receipt requested, first class postage prepaid. All notices and
communications, to be effective,
-24-
must be properly addressed to the Party to whom the same is directed at
its address as follows:
If to Equifax, to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Corporate Vice President
Fax: (000) 000-0000
with a copy to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxx
General Counsel
Fax: (000) 000-0000
If to Intersections, to: Intersections Inc.
00000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Chief Executive Officer
with a copy to: Intersections Inc.
00000 Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Chief Financial Officer
Either Party may, by written notice delivered to the other Party in
accordance with this Section 26.5, change the address to which delivery
of any notice shall thereafter be made. Notice given to Intersections
Inc. pursuant to this Agreement shall be deemed to have been equally
given to CreditComm Services LLC.
25.6. Entire Agreement. Except as set forth in the Second Addendum
to the Data Agreement referred to in Section 7.1.2 hereof, the Credit
Monitoring Agreement referred to in Section 7.1.13 hereof, and the
Hosting Agreement referred to in Section 9 hereof, each executed as of
the date hereof by the parties hereto, and the Agreement Regarding
Equifax Authentication Service referred to in Section 8 hereof, this
Agreement, including all Exhibits hereto, constitutes the entire
understanding of the parties hereto with respect to the subject matter
hereof, superseding all negotiations, prior discussions and prior
agreements and understandings relating to such subject matter. All
Exhibits attached hereto are by this reference made a part of this
Agreement and are incorporated herein, and any reference herein to
"this Agreement" or "the Agreement" shall include any applicable
Exhibits.
-25-
25.7. Severability. The provisions of this Agreement are severable
and should any provision hereof be void, voidable or unenforceable
under any applicable law, such provision shall not affect or invalidate
any other provision of this Agreement, which shall continue to govern
the relative rights and duties of the parties as though such void,
voidable or unenforceable provision were not a part hereof.
25.8. Governing Law. This Agreement shall be construed in accordance
with, and governed by, the laws of the State of Georgia, without regard
to the conflicts of law rules of such state. Notwithstanding the
foregoing, if all of the providers and recipients of services under a
particular Exhibit are residents of the same country (other than the
United States), this Agreement shall be construed in accordance with,
and governed by, the laws of such country with respect to such Exhibit
only.
25.9. Headings. The Section headings set forth in this Agreement are
included for administrative, organizational and convenience purposes,
and are not intended to affect the meaning of the provisions set forth
in this Agreement or to be used in the interpretation of this
Agreement.
25.10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original instrument, but
all of which together shall constitute but one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
EQUIFAX CONSUMER SERVICES INC. INTERSECTIONS INC.
By: _______________________________ By: _______________________________
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
CREDITCOMM SERVICES LLC
By: _______________________________
Name: _____________________________
Title: ____________________________
-26-
EXHIBIT A
DEFINITIONS
A. "AFFILIATES" means with respect to any person or entity, any other
person or any now existing or future entity that directly or indirectly through
one or more intermediaries, controls, is controlled by or is under common
control with such person or entity.
B. "DELIVERABLES" means any report, explanation or other item produced
and delivered to a consumer as part of or byproduct to any Service provided
hereunder.
C. "EQUIFAX CREDIT INFORMATION" means consumer credit files and
information relating thereto maintained by Equifax Information Services LLC, a
credit-reporting agency.
D. "FORCE MAJEURE EVENT" means the definition of the term given in
Section 23.
E. "INTEGRATED PLANNING TEAM" means the definition of the term given in
Section 11.1.
F. "INTELLECTUAL PROPERTY" means all design rights, marketing rights,
devices and designs, copyrights, knowledge, goodwill marks or other ownership
rights of any type associated with a Service.
G. "INTERNET CONTENT" means the definition of the term given in Section
15.5.
H. "INTERNET SERVICE STANDARDS" means those security and performance
standards attached hereto as Exhibit I.
I. "INTERSECTIONS SERVICES" means those Services as designated in the
respective Exhibits to this Agreement that Intersections is responsible for
providing to Equifax.
J. "INVESTMENT AGREEMENT" means that certain Note Purchase Agreement
dated as of November 27, 2001 by and among Intersections Inc., and CreditComm
LLC, as issuers, and CD Holdings Inc., as purchaser, pursuant to which CD
Holdings Inc. is purchasing a $20,000,000 note.
K. "MARKS" means with respect to a Party all domain names, trademarks,
trade names, service marks, or service names, logos, slogans, and any other
proprietary designations in which the Party has an ownership or license
interest.
L. "PROGRAM COMMUNICATIONS" means any communications and all related
collateral produced in furtherance of the Services.
M. "PROJECT EXECUTIVE" means the definition of the term given in
Section 11.2.
Page A-1
N. "SUBCONTRACTORS" means any third party hired, or contracted with by
either Equifax or Intersections to perform part of its obligations under this
Agreement.
O. "USER" means a consumer who purchases from Equifax or Intersections
a product or service, which is provided or supported by, or offered in
connection with, Services performed under this Agreement.
P. "USER INFORMATION" means any information or data about Users (i)
provided by one party to the other, (ii) provided by the User to a party in
connection with a Service provided hereunder, (ii) otherwise collected from
User's purchases or use of any Service. Notwithstanding the foregoing, User
Information does not include information regarding the User already in the
possession of a Party prior to being input by and collected from such User.
Q. "WORK PRODUCTS" means the copy artwork, layouts, designs, scripts
storyboard, tapes, films, mechanicals and any other document or materials
(including, without limitation, logos, photographs and illustrations) that are
prepared in connection with the Program Communications.
Page A-2
EXHIBIT B
EQUIFAX CREDIT WATCH (OFF-LINE) SERVICE
1. RESPONSIBILITY
Intersections shall provide the Equifax Credit Watch (Off-Line) Service (the
"Service") to Equifax.
2. DESCRIPTION OF SERVICE
- "Equifax Credit Watch (Off-Line) Service" shall mean a private label
paper-based credit monitoring service utilizing Equifax Credit Information
and bearing the Equifax Credit Watch name consisting of delivery to
Consumers who purchase the product a booklet with the following components
as more specifically described herein: (i) an Equifax credit report with
related explanation; (ii) prompt notification by mail of changes to the
Consumer's credit report; (iii) quarterly updates summarizing changes to
the Consumer's report that occurred in that quarter; and (iv) access to
Intersections' Consumer Fraud Resource Center. In providing the Equifax
Credit Watch (Off-Line) Service, Intersections shall perform the following
functions as further detailed herein: marketing assistance, enrollment
(including collection of fees and fulfillment) and customer service
(including processing of customer inquiries, cancellation and renewals).
- The Service will initially be provided to Equifax Affinity Partners with
the option to broaden the distribution at a later date.
- The planned launch of the product is December 4, 2001.
- Equifax reserves the right to request Intersections to modify the Service
at a later date to add one or more additional components such as additional
credit reports and/or fraud insurance protection. The parties will agree on
the terms of any change to the Service and any corresponding change to the
fee charged for the Service, although there need not be a fee change.
- The Program Name shall be Equifax Credit Watch(TM), which is a trademark of
Equifax Inc.
- Equifax will perform the following duties to facilitate Intersections'
delivery of the Service: Participate in and approve the marketing materials
being developed by Intersections for the Service.
3. COST/FEES.
Page B-1
The costs and fees associated with the Service are set forth in Appendix F.
Intersections will collect the designated prices for the Services from the
Members and shall remit to Equifax amounts less the fees that it is entitled to
for providing the service, all in accordance with the terms of the Master
Agreement, or such other terms that the Parties shall agree to.
4. PERFORMANCE STANDARDS/SERVICE LEVELS
The Performance Standards and Service Levels applicable to the Service are as
set forth in the Additional Terms and the Appendices attached hereto.
5. ADDITIONAL TERMS.
SECTION 1. DEFINITIONS; APPENDICES. For purposes of this Exhibit B, a
capitalized term will have the meaning shown in this Section 1.1:
1.1. "Additional Program Materials" means all literature, general
correspondence and other materials, in addition to Solicitation Materials and
Fulfillment Materials, furnished to any Member in connection with the Program or
the customer service provided by Intersections.
"Consumer" means an individual consumer who, according to Equifax's criteria, is
eligible to be solicited for the Program.
"Fulfillment Materials" means any one or combination of the initial Program
membership kit, the Equifax credit report, notifications of changes to a
Member's credit file, quarterly credit updates, and all other materials provided
to the Member.
"Marketing Materials" means any one or combination of Solicitation Materials,
Fulfillment Materials, and Additional Program Materials.
"Master Agreement" means the Master Agreement for Marketing, Operational and
Cooperative Services entered into among Intersections Inc., CreditComm Services
LLC and Equifax dated November 27, 2001.
"Member" means a Consumer who enrolls in the Program and to whom Fulfillment
Materials are issued.
"Membership Fee" means the fee that Consumers will pay to be enrolled in the
Program and to receive Services.
"Program" means the program to market, offer and deliver Services to Consumers
in accordance with the terms of the Master Agreement and this Exhibit B.
"Solicitation" means a Program offer made to a Consumer in accordance with this
Exhibit through direct-response marketing, including without limitation, direct
mail, statement insert, telemarketing and Internet, or by other means such as
inbound service and sales.
Page B-2
"Solicitation Materials" means all creative copy and proofs for letters,
billing-statement inserts, bangtails, brochures, telemarketing scripts and other
promotional communications in connection with a Solicitation.
1.2 APPENDICES. Each notation in this Exhibit B of an Appendix refers
to an appendix that is attached at the end of this Exhibit and which is made a
part of this Exhibit B.
SECTION 2. PROGRAM MARKETING.
2.1 PROGRAM NAME. Equifax will have the exclusive right to determine
when and how Program Name(s) will be used in conjunction with Program marketing.
Equifax will own all right, title and interest in and to each Program Name and
web site domain name that Equifax selects.
2.2 MARKETING MATERIALS.
(a) MARKETING MATERIALS PRODUCED BY EQUIFAX. Equifax will be
responsible at its cost and expense to develop certain Solicitation Materials
and Fulfillment Materials to be determined by the Parties. The Parties
acknowledge that while Equifax will own all right, title and interest in and to
the Marketing Materials it produces, the terms of Section 12 of the Agreement
shall apply to such Materials and Equifax shall not otherwise gain any rights in
any Intellectual Property contributed to such Marketing Materials by
Intersections, except as the Parties shall agree.
(b) MARKETING MATERIALS PRODUCED BY INTERSECTIONS. Intersections will
produce certain Marketing Materials for Equifax for which there shall be no
additional fee, including the design of a folding mail brochure, and the
Fulfillment Materials set forth on Appendix B. The parties are working to
finalize these materials for the Program launch date.
Intersections will further be responsible at its cost and expense to
develop original creative fulfillment materials as set forth in Appendix B.
Equifax will own all right, title and interest in and to the Marketing Materials
set forth in Appendix B that are produced by Intersections. Intersections will
ensure that Marketing Materials properly display and use the Program Name (s) as
Equifax has directed. Intersections will ensure that the description of Services
is accurate and materially complete. Equifax will reasonably ensure that
Marketing Materials will be consistent with the terms of any other
communications that Equifax has given to Members. Intersections will seek
Equifax's prior written approval of Marketing Materials Intersections produces
pertaining to the Services as well as the production and printing schedule for
those Marketing Materials. Marketing Materials will be subject to Equifax's
prior written approval, which will not be unreasonably withheld. If Equifax
requires changes to the Marketing Materials after providing such approval,
Equifax will be responsible for actual out-of-pocket costs incurred by
Intersections related to materials not able to be used.
(c) INSERTS. Equifax will, at additional cost, have the option to
include with Intersections' customer communications, promotions or
communications for any other
Page B-3
product(s) or service(s) that Equifax selects for Consumers ("Inserts"),
provided that any such marketing materials insert effectively through
Intersections' insertion equipment and would not be considered distasteful or
offensive to a reasonable person.
2.3 RESTRICTIONS ON MARKETING. Intersections will not knowingly offer
or otherwise solicit any Member, or allow a third party to offer or solicit any
Member, for any other product or service or for any reason.
SECTION 3. PROGRAM ADMINISTRATION.
3.1 INTERSECTIONS SERVICES.
(a) APPENDIX A. Intersections will be responsible at its cost and
expense for all aspects of delivering and administering the Equifax Credit Watch
(Off-line) Services and related services to Members, including, at a minimum,
the features, functions and benefits described in this Exhibit and Appendices A
and B.
(b) CHANGES. Intersections may not change Services without Equifax's
prior written approval; provided that Intersections may make reasonable changes
required as a result of changes imposed or required by any regulatory authority.
(c) MEMBER LIST. Intersections will maintain an accurate, up-to-date
record of each Member, which contains the items, listed on Appendix C or as
otherwise agreed upon by the parties from time to time (the "Member List").
Intersections will use the Member List only as permitted or required in this
Agreement. Members shall be considered Equifax customers and Intersections shall
use information regarding such Members only to provide Services hereunder and
for no other purposes. The Member List shall be considered Equifax User
Information.
3.2 ENROLLMENT.
(a) ENROLLMENT PROCESS. Intersections will process enrollments for the
Program based on the guidelines set forth in Appendix D.
(b) PRIVACY AND OPT-OUT NOTICES. Intersections will include the Privacy
and Opt-Out Notices set forth in Appendix H with the appropriate
Marketing Materials, to be determined by Equifax.
(c) MEMBERSHIP FEES; BILLING AND COLLECTION. Intersections shall
execute and process the billing transactions as part of its
service to Equifax in accordance with the guidelines set forth in
Appendix D.
CANCELLATION PROCEDURES. If the Member notifies Intersections or
Equifax stating that the Member no longer wants the Service,
Intersections will process such cancellation request in accordance with
the Equifax refund policy referred to in Appendix D.
(d) RENEWALS. Each Member's Program membership will be automatically
renewed for an additional period upon expiration of the previous
period. Thirty (30) calendar
Page B-4
days prior to the expiration of the then-current term of the Service,
Intersections will charge the Member's credit card for the then-current
price of the Service and it will be renewed unless the Member cancels
within the thirty (30) day period by notifying Intersections that the
Member wishes to cancel.
3.3 CUSTOMER SERVICE.
(a) FUNCTIONAL RESPONSIBILITIES. Intersections will be responsible to
perform all Program-related customer service functions, including,
without limitation, responding to Consumer and Member inquiries about,
arising from or relating to the Program, Services, the Fulfillment
Materials, Membership Fee xxxxxxxx and Member and Consumer complaints.
Intersections shall perform these functions in a manner that meets or
exceeds the Customer Service Standards set forth in Appendix E.
(b) PHONE NUMBERS, URLs AND P.O. BOXES. Equifax will have the sole
right and discretion to select and designate the use of: (1) each phone
number for the purpose of receiving inbound Program customer-service
calls ("Phone Number") and (2) each U.S. Post Office Box for the
purpose of receiving Program customer-service mail ("P.O. Box"). At any
time during or after expiration or termination of this Exhibit, Equifax
will have the right to take possession and control of any Phone Number
and related URLs, portals and any P.O. Box, and Intersections will
cooperate with and facilitate Equifax in doing so.
(c) DEDICATED CUSTOMER SERVICE REPRESENTATIVES. Each day, Intersections
will assign dedicated customer service representatives to the Program
to answer and handle Member inbound calls in accordance with the
Customer Service Standards (Appendix E described below). Intersections
shall assign a fully dedicated representative when Equifax' volume
exceeds a certain call threshold to be agreed upon by the parties.
Intersections shall, upon receipt of a request by Equifax, promptly
remove any customer service representative, whether part of a dedicated
team or not, from supporting the Program.
(d) CUSTOMER SERVICE STANDARDS. Intersections will comply with the
Customer Service Standards set forth in Appendix E. Intersections will
train its employees who could have contact with Consumers or Members so
that they know and understand the Customer Service Standards and so
that Intersections' evaluation of their job performance takes into
account their ability to adhere to the Customer Service Standards. To
ensure high-quality customer service and prompt resolution of problems
or potential problems Intersections will assign and identify to Equifax
an Intersections customer service manager who will be the primary
contact to communicate with Equifax's representatives for the purpose
of responding to and resolving Member and Consumer inquiries,
complaints and problems. Intersections will maintain written
customer-service policies and procedures that Intersections and its
employees and Subcontractors will be required to strictly follow.
(e) DUTY TO NOTIFY EQUIFAX. Intersections will notify Equifax of each
inquiry, claim or complaint that Intersections receives from any
regulatory authority, attorney or other
Page B-5
person taking or threatening regulatory or legal action against
Intersections or Equifax in connection with the Program regardless of
whether action is taken or threatened. Intersections will so notify
Equifax, in accordance with the notice provisions in the Master
Agreement, within one business day of Intersections' discovery of such
inquiry, claim or complaint and shall include with such notice any
correspondence or other document received in connection with the
inquiry, claim, or complaint.
(f) DUTY TO PROVIDE DOCUMENTS AND INFORMATION. Immediately upon
Equifax's request, Intersections will deliver to Equifax copies of any
correspondence or relevant documents or information concerning any
inquiry, claim or complaint concerning the Program.
SECTION 4. REPORTS.
Intersections will maintain and send Equifax each of the reports set
forth in Appendix such other reports or records that Equifax may reasonably
request.
SECTION 5. ADOPTION OF MASTER AGREEMENT.
The terms and conditions of the Master Agreement will apply to this
Exhibit. In the event of any conflict between the terms and conditions of the
Master Agreement and this Exhibit, the Exhibit will control.
SECTION 6. DEFINED TERMS.
Except as defined herein or otherwise required by the context herein,
all defined terms used in this Exhibit have the meaning set forth in the Master
Agreement.
Page B-6
Appendix A
Description of Intersections Services for Equifax Credit Watch (Offline)
1-BUREAU PERSONALIZED CREDIT PROFILE
DEFINED
- Each enrolled member will receive via first class mail a personalized
fulfillment kit which will include the following:
- A welcome to Equifax Credit Watch letter
- an Equifax credit profile in easy to read format
- a list of creditor contact information (when available)
- an account history summary based on the account information
available
- information on the Notify Express, Quarterly Update and Fraud
assistance features
NOTIFY EXPRESS
DEFINED
- Utilizing the Equifax Credit Watch daily alert system Intersections
will provide Notify Express alerts to consumers via first class mail.
- Notices will be mailed within 48 business hours of receipt from
Equifax
- Members are notified of any new inquiries, address changes or account
openings which have been received at Equifax
QUARTERLY CREDIT UPDATE (CQCU)
DEFINED
- Every 90 days members will receive a quarterly credit update which
contains:
- Guarding your credit information
- New accounts opened
- Inquiries
- Address changes
- Identification information changes
- Managing your credit information
- Public record items
- Collection accounts
- Negative information
- Balance increases greater than 20%
- Account status improvements
- Items removed
Page B-7
- Credit limit increases
- The CQCU also contains customized "next steps" based on the specific
type of information contained in the CQCU.
CONSUMER FRAUD RESOURCE CENTER
DEFINED
- Members will have access to Intersections Consumer Fraud Resource
Center. The center's functions include, but are not limited to:
- Contacting the three major credit reporting agencies to place a
fraud statement on the customer's credit report (as allowed by
policy of the credit reporting agency(ies)).
- Providing information on the process to dispute unauthorized or
fraud-related credit information and completing a dispute letter
or investigative report for the customer to send to the credit
reporting agencies.
- Contacting creditors to report the fraud (where allowed by
creditor policy) or completing a creditor letter for the customer
to send to the creditor.
- Provide assistance in contacting regulatory agencies
- the specialist may prepare a law enforcement letter,
explaining the fraud, on behalf of the customer.
- Members are sent a Fraud First Aid Kit after their initial contact
with the center. This brochure includes:
- helpful information
- credit reporting agency telephone numbers
- check verification systems telephone numbers
- SSN administration information
- Contact Information Sheet - so that the victim can keep
track of all contacts made during the credit recovery.
Page B-8
Appendix B
MARKETING MATERIALS
Solicitation Materials: TBD
Fulfillment Materials: In providing the Equifax Credit Watch (Off-Line) services
under this agreement Intersections fulfillment materials will consist of the
following items:
1-BUREAU KIT
ADF PROFILE KIT 1 AUTHORIZED QTY
Cover, CreditWatch 1
P1117 Paper, Plain 11 x 17 6
E912 Envelope, 9 x 12 (Generic) 1
Notify Express
QTY
P811 Paper, Plain 8.5 x 11 1
E10DW Envelope, #10 1
QUARTERLY CREDIT UPDATE(1-BUREAU)
QTY
P811 Paper, Plain 8.5 x 11 8
E912 Envelope, 9 x 12 (Generic) 1
NOTE: The exact size of any of the fulfillment items described above may vary
based on the volume and size of the particular Member's credit information.
Additional Program Materials: Requests for development of additional materials,
inserts or customized materials in place of generic components will be reviewed
and agreed by Equifax and Intersections and may result in the adjustment of
associated cost components.
Page B-9
Appendix C
Member List Data Elements
Phase 1 - Intersections will provide Equifax with membership information on a
regular basis to be agreed upon by both parties but not to exceed monthly. The
data provided in this membership file will include data fields such as those
listed below.
- Member name
- Member address,
- Member email address
- Member social security number
- Member billing number
- Member telephone number
- Marketing code
- Member enrollment date
- Member cancellation date
- Member billing date(s)
- Member billing refund date(s)
- Date of Birth
Phase 2 - Equifax and Intersections will agree on a method and frequency of
transmitting membership data in an automated format such as real time system to
system or batch files on regular daily intervals. The purpose of this data is
for inclusion into the Equifax Consumer Services master customer database.
Page B-10
Appendix D
Enrollment and Cancellation Procedures
Intersections will process enrollments and cancellations based on the guidelines
below:
ENROLLMENT PROCEDURES
MARKETING CHANNEL ENROLLMENT TRANSMISSION METHOD
----------------- ------------------------------
1. Online web Link **
2. Other* **
* Other includes Direct mail, billing statement inserts and fax enrollment forms
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Note: Equifax and Intersections will agree on a resubmissions (retries) policy.
CANCELLATION PROCEDURES
Members may write or call Intersections in order to cancel their membership in
the Program for any reason. If the Member calls Intersections to cancel, the
phone specialist will attempt to retain the Member in the Program by discussing
the benefits of the Program. If Members still want to cancel their membership in
the Program, Intersections will process a refund of the Membership Fee according
to the guidelines listed below:
Steps:
1. If the Member was billed the Membership Fee, the phone representative
will offer to refund a prorated amount based on the time the Member was
enrolled in the program per the Equifax refund policy to be supplied to
Intersections.
Page B-11
Appendix E
Customer Service Standards
Intersections will perform customer service and meet at least the
following standards. Intersections will work with EQUIFAX to meet these
standards according to a mutually agreed upon Action Plan. The "Reporting
Required" corresponds with the requirements in Appendix H.
Intersections' inbound customer service hours are:
Monday to Friday 8:00 a.m. to 8:00 p.m. Eastern time
SERVICE TIME
CRITERION STANDARD MEASURE DEFINITION REPORTING REQUIRED
-----------------------------------------------------------------------------------------------------------
Average speed of ** ** Weekly / Monthly report of
answer ACD activity
-----------------------------------------------------------------------------------------------------------
Abandonment rate ** ** Weekly / Monthly report of
ACD activity
-----------------------------------------------------------------------------------------------------------
Customer ** ** Weekly Vendor Complaint
complaint Report
resolution
-----------------------------------------------------------------------------------------------------------
Response to ** ** Monthly Performance
Customer Reports - Cancels &
request for Cancel Code Reason
Cancel
-----------------------------------------------------------------------------------------------------------
Response to ** ** TBD
Customer
request for
Additional
Reports
-----------------------------------------------------------------------------------------------------------
Response to e-mail ** **
service question
-----------------------------------------------------------------------------------------------------------
Membership Kit ** ** Weekly Performance
Fulfillment Reports - Fulfillment
Tracking & Inventory
Report
-----------------------------------------------------------------------------------------------------------
Remote ** ** N/A
monitoring
-----------------------------------------------------------------------------------------------------------
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Page B-12
The EQUIFAX Customer Service number is (000) 000-0000 and will be answered in a
manner to be determined by Equifax. This number will be owned by Equifax and
administered by Intersections. Intersections will be responsible for all calls
related to the offline Credit Watch product including billing, credit education,
fraud assistance, dispute resolution (when available) and membership calls.
Page B-13
Appendix F
Service Fee Schedule
Intersections will provide the services at the following fee schedule:
Amount
------
One Bureau Kit $** per enrollment
One Bureau Quarterly Monitoring $** per quarterly report
One Bureau Notify Express $** per month per enrollee
Customer Service At Equifax Standards $** per minute
VRU and 800 Line **
Data Entry Of Enrollments $** per enrollment
Billing services $** per transitions plus cost
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Intersections will provide the initial design and-development of marketing
materials and website. New materials and changes will be charged on a time and
material basis at actual out of pocket labor and material cost plus a **%
markup. Equifax must preauthorize additional work in writing.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Intersections will xxxx customer members on behalf of Equifax and remit net
amount due on a monthly basis with summary of members, gross and net revenue
including expenses and Intersections charges. Intersections will wire the net
amount to Equifax within 10 business days of the month end.
Non-Intersections Service Calls:
Measured based on the number of
Non-Intersections Service Calls processed each calendar
month in which the entire call relates to matters other
than Intersections Services $**/call***
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
*** This fee will be charged only after the number of Non-Intersections
Service calls during the calendar month exceed **% of total Program inbound call
volume and will apply only to the number of calls that exceed the **% threshold.
Non-Intersections Service calls are defined as calls received from Members and
answered by the Intersections' Service Center in which none of the caller's
inquiries are about the Program and the primary inquiry is regarding another
EQUIFAX service.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
As of the effective date of this Agreement, Intersections does not have
the online systems capability to identify, track and record Non-Intersections
Service calls when they are
Page B-14
received. However, when that online systems capability is developed and tested
for accuracy and reliability, Intersections will have the right to charge the
fee, subject to at least 1 month's prior written notice to EQUIFAX certifying
that testing has been successfully completed.
Page B-15
Appendix G
Report Forms
On a monthly basis Intersections will provide in an electronic media, to be
agreed upon, a listing of all members, their gross charges, deductions and
Intersections service fee calculation.
Intersections will provide additional information as mutually agreed.
Page B-16
Appendix H
Privacy and Opt-Out Notices
CREDIT WATCH PRIVACY POLICY AND OPT-OUT NOTICES
We, Equifax Consumer Services, Inc. and Intersections Inc. (our
fulfillment contractor), understand and respect your desire to know how
information about you will be collected and used, how that data will be
disclosed, who will have access to it, how it will be secured and what choices
you have in controlling it. The following statements describe our information
privacy policy, specific information practices and opt-out procedures.
INFORMATION WE COLLECT
We collect nonpublic personal information about you such as name,
address, driver's license information and e-mail addresses, from the following
sources:
- Information we receive from you, such as when you register for
and order services (the "Services") or when you send us
e-mail, applications and other forms.
- Information about your transactions with us, our affiliates or
others, such as which products and services you requested.
- Information we receive from third parties, such as consumer
reporting agencies and companies that provide demographic
information.
We use this information to provide you the Services, support for the
Services, and information about our Services, as well as for various internal
business purposes such as: customer service; fraud prevention; and broadening
and improving the services and products we can offer.
INFORMATION WE DISCLOSE
We may disclose any of the information we collect, as described above,
to the following types of unaffiliated third parties (companies that are not
owned or controlled by us) for various business purposes, including marketing
and joint business efforts for other related and unrelated products and
services:
- Financial services providers, such as banks and mortgage
lenders.
- Non-financial companies, such as retailers, direct marketers
and publishers.
- Others, as permitted by law.
We may also disclose any of the information we collect to companies
that perform marketing services on our behalf and other financial institutions
with which we have joint marketing agreements.
Page B-17
We may also disclose any of the information we collect to affiliates,
which are companies that are related to us by common ownership or affiliated
with us by common control.
We may disclose any of the information described above to our
affiliates and the types of unaffiliated third parties described above whether
you are a consumer who purchases a one-time service, a customer with whom we
have an ongoing relationship, or a former customer.
YOUR RIGHT TO CHOOSE
You may direct us not to disclose to nonaffiliated third parties any
nonpublic personal information that we collect about you in connection with any
of the Services that you obtain from us. This is called "opting out." To do so,
you must call us at the following toll-free phone number: (000) 000-0000 and
tell us that you want to opt out of such disclosures. Please note that your
decision to opt out will not apply to certain disclosures that are specifically
permitted by law.
KEEPING YOUR INFORMATION SECURE
Except as set forth in the "INFORMATION WE DISCLOSE" section above, we
restrict access to nonpublic personal information about you to only those who
have a need to know that information in connection with the purposes for which
it is collected and used. Additionally, we maintain physical, electronic, and
procedural safeguards to guard nonpublic personal information about you.
Further, nonpublic personal information we collect is subject to numerous
measures designed to help protect it from unauthorized access or alteration.
KEEPING UP-TO-DATE
We want you to be fully informed about how we will protect your
privacy. We may change our privacy policy in the future, but we will not change
our practices until we have notified you. You agree that we may notify you of
changes in our policy via mail. If you have any questions about our Privacy and
Opt Out Notices or about our information practices, you can send us your
question by email at xxxxxxxx.xxxx@xxxxxxx.xxx or you may call us at the
following toll-free phone number: (000) 000-0000.
These Notices apply to individuals using the Services for personal,
family or household purposes. Certain practices described and rights provided
herein may not apply to institutional users or individuals who use the Services
for business purposes.
PAGE B-18
EXHIBIT B-1
CREDIT WATCH - ONLINE ENROLLMENT
1. RESPONSIBILITY
Intersections will provide to Equifax a means whereby its Affiliate Partners can
via the internet order the Credit Watch (Off-line) service.
2. DESCRIPTION OF SERVICE
- In connection with the Credit Watch (Off-line) Service, Intersections will
design certain online order pages with Equifax branding which Intersections
will then host on a separately established webpage to enable online
ordering of the Credit Watch (Off-line) Service.
- Equifax will create an electronic link on its Affinity Partners website to
enable consumers visiting that website to link over to the Intersections
hosted order page and order the Credit Watch (Off-line) Service.
- Equifax will cooperate with Intersections in designing the webpage and in
providing the Equifax Marks to be included in the page.
- Equifax shall have final approval of the content of the web pages and shall
own all right, title and interest in and to such content.
- Intersections will process the Members enrolling via the Equifax Credit
Watch-Online Enrollment in the same manner as they do the consumers
enrolling in any other manner for the Equifax Credit Watch (Off-line)
Service.
- The planned launch of the Equifax Credit Watch-Online Ordering is December
4, 2001.
- Equifax Credit Watch(TM) is a trademark of Equifax Inc.
- Equifax will perform the following duties to facilitate Intersections
delivery of the Service:
- Install the link on its Affinity Partners website to facilitate
consumers ordering Equifax Credit Watch (Off-line) through that site.
3. COST/FEES.
Page B-19
This is no separate fee to be paid by either party for this service.
4. PERFORMANCE STANDARDS/SERVICE LEVELS
In providing the Online Ordering Services, Intersections will comply with
Section 15 (Provisions Relating to Networks and Systems) of the Master Agreement
and Exhibit I (Internet Service Standards).
5. ADDITIONAL TERMS.
- CUSTOMERS
- Customers ordering the Equifax Credit Watch (Off-Line) Service via the
Online Enrollment process shall be considered Equifax customers and
Intersections shall use the User Information regarding such customers only
to provide the Credit Watch (Off-line) Services hereunder and for no other
purpose.
Page B-20
EXHIBIT C
ONLINE-DISTRIBUTION OF TRI-BUREAU REPORT
1. RESPONSIBILITY
Equifax shall provide to Intersections the capability for consumers to order via
the internet the Intersections Tri-Bureau credit report for online electronic
delivery.
2. DESCRIPTION OF SERVICE
- Equifax will provide online ordering capability for Intersections
Tri-Bureau credit report on its public and Affinity web sites to enable
online ordering of Intersections Tri-Bureau Report.
- To facilitate online purchase of Intersections Tri-Bureau report,
Equifax will authenticate the consumer, collect enrollment data,
consumer consent, and billing information.
- Equifax will then transmit a request for report to Intersections.
- Intersections will process billing the consumer and create and display
the Tri-Bureau report on a stand alone Intersections site or pop up
browser which will not have connectivity to the rest of the
Intersections website.
- Intersections shall establish appropriate connectivity to enable it to
receive system to system transmission of requests.
- Equifax will provide to Intersections drafts of the webpages' content and
Intersections shall review the same and the parties will agree on the
appropriate content to be used.
- Intersections shall provide to Equifax the Intersections Marks to be used
on the pages.
- Intersections will process and fulfill orders for Members enrolling via the
online process in accordance with this Exhibit.
- The planned launch of the Tri-Bureau Online ordering is January 15, 2002.
3. COST/FEES.
Page C-1
- $** per Tri-Bureau report.
- Intersections shall pay to Equifax a commission of the net difference
between the retail price realized by Intersections and $** for each
Tri-Bureau report purchased through the Equifax web site. Billing (retail)
to be done by Intersections with net revenues (net of billing costs) being
passed to Equifax as commission.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
- Price includes Equifax, TU and Experian files.
- Price includes Credit Education (Customer Service) cost.
- Equifax and Intersections will mutually agree on the retail price
- Equifax will be responsible for the authentication
- The Parties shall mutually agree on:
- Amounts to be paid to Intersections for costs incurred where a credit
file(s) is pulled but the Service cannot be delivered to a Member
online
- Whether to offer offline fulfillment of the Service and what fee shall
be payable to Intersections with respect to such fulfillment.
4. PERFORMANCE STANDARDS/SERVICE LEVELS
In providing the Tri-Bureau online Ordering Service Equifax and Intersections
shall comply with Section 15 (Provisions Relating to Networks and Systems) of
the Agreement and Exhibit J-lnternet Service Standards, the standards set forth
in the Privacy and Opt Out Notices on the Equifax public and Affiliate websites,
and the Additional Terms below.
5. ADDITIONAL TERMS
- CUSTOMERS
- Customers ordering the Tri-Bureau Report via the Online Service shall be
considered joint customers of Equifax and Intersections and the parties
shall agree on how each may use the User Information relating to such
consumers.
- DETAILED DESCRIPTION
TRANSACTIONS REQUEST
-
- **
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Page C-2
BILLING REQUESTS
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
CREDIT BUREAU PROCESSING
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
EQUIFAX TRANSACTIONS
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Page C-3
INTERSECTIONS TRANSACTIONS
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
PURCHASE, SERVICE AND CANCELLATION PROCEDURES
Intersections will process orders and cancellations based on the guidelines
below:
PURCHASE PROCEDURES
1. MARKETING CHANNEL PURCHASE TRANSMISSION METHOD
Online web orders only Equifax hosts the order, authentication
and credit card entry pages. Consumers
will be linked to an Intersections page
or pop up browser for display of their
report.
CANCELLATION PROCEDURES
The refund policy on transaction sales is "All sales are Final". Consumers who
do not accept this policy must be referred to an Intersections manager for final
resolution.
Page C-4
SERVICE PROCEDURES
- In order to service customers who purchase tri-bureau profiles
Intersections will establish a new 800 service number.
- Members who call this number will be routed to an Intersections managed
AT&T network VRU.
- Based on VRU entries by the member the service call will be routed by AT&T
to the appropriate Equifax or Intersections Service location.
- VRU options and costs will be jointly agreed upon by Equifax and
Intersections
- Hours of service will be 8:00 AM to 8:00 PM Monday through Friday.
- Intersections agrees that the 800 number assigned for service under this
agreement will be managed by Intersections and that Equifax at its request
may assume responsibility and ownership for the number. Intersections
agrees to cooperate and assist in the movement of the 800 number to Equifax
at such time.
- The Customer Service number referred to in this section is (000) 000-0000.
Page C-5
Exhibit D
New Product Development Cooperation
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Exhibit D-1
Extension Product Development Cooperation
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Exhibit D-2
Product Convergence Cooperation
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Exhibit D-3
Marketing Channels Cooperation
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Page D-1
EXHIBIT D-4
[NAME OF SERVICE]
1. Detailed description of the service to be provided, including:
- Identification of each Party's obligations to the
other
- Which Party "owns" the product/Service
- Treatment of User Information
- Which Party owns the customers
- Applicability of Privacy Policies
- License of any Marks
- Ownership of Intellectual Property
2. How are cost incurred and revenues realized to be borne by the Parties
3. Time table
4. Performance Standards and Service Levels including customer service and
any deliverables, etc.:
5. Other Terms
This Exhibit shall operate as an addendum and amendment to that certain Master
Agreement for Marketing, Operational and Cooperative Services entered into by
and among Equifax Consumer Services, Inc, Intersections Inc., and CreditComm LLC
as of November 27, 2001 (the "Master Agreement"). All terms of the Master
Agreement shall remain in full effect except to the extent specifically altered
or conflicted by this Exhibit.
EQUIFAX CONSUMER SERVICES INC. INTERSECTIONS INC.
By:_________________________________ By:__________________________________
Name: ______________________________ Name: _______________________________
Title:______________________________ Title:_______________________________
CREDITCOMM SERVICES, LLC
By:_________________________________
Name: ______________________________
Title:______________________________
Page D-9
EXHIBIT E
DATA AGREEMENT
[Filed as Exhibit 10.6 to the Registration Statement on Form S-1
(File No. 333-111194)]
EXHIBIT F
CREDIT MONITORING AGREEMENT
[Filed as Exhibit 10.7 to the Registration Statement on Form S-1
(File No. 333-111194)]
Exhibit G
Existing Intersections Clients Using Trans Union Authentication Services
**
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
EXHIBIT H
INTERSECTIONS WEB SITE HOSTING AGREEMENT
This Web Site Hosting Agreement ("Agreement") is made and
entered into as of the____ day of__________, 2001 ("Effective Date"), by and
between: EQUIFAX INFORMATION SERVICES, INC., a Georgia corporation with its
principal place of business at 0000 Xxxxxxxxx Xxxxxx, XX, Xxxxxxx, Xxxxxxx 00000
("Equifax"), and Intersections Inc. ("Intersections"). Equifax and Intersections
are each referred to as a party and collectively as the "parties."
1. SERVICES
1.1. Services. In connection with a certain Marketing,
Operational and Cooperative Services Agreement, dated
as of November 27, 2001 (the "Commercial Agreement"),
entered into by Equifax Consumer Services, an
affiliate of Equifax, Inc., CreditComm Services LLC,
a affiliate of Intersections, and Intersections,
Equifax agrees to perform and provide to
Intersections, services consisting of non-exclusive
electronic access to a digital information
processing, transmission and storage system
("Server") to store Intersections's website ("Site")
and make the Site available on and via the global
computer communications network ("Internet"), all as
set forth and specified in this Agreement and Exhibit
A ("Services"). Intersections agrees that the
Services will not include any website development
services, authorship or creation with respect to the
Site or other services not specified herein. The
Services will be performed utilizing the software and
hardware to be purchased and owned and/or licensed
by/to Equifax as listed in Exhibit B (the "Equipment
Purchase"), as may be modified, updated and/or
supplemented by Equifax from time to time.
Intersections may request that Equifax modify, update
or supplement the software and hardware listed in
Exhibit B, which request Equifax will review for
approval in good faith; provided, however, that
Intersections shall pay Equifax for all charges
incurred and/or allocated by Equifax in connection
with such modification, update and/or supplement.
Notwithstanding the above, this section 1.1 is
subject to and limited by Exhibit C, "Transition
Period Services."
1.2. Availability of Services. Subject to the terms and
conditions of this Agreement, Equifax will use
commercially reasonable efforts to provide the
Services for twenty-four (24) hours a day, seven (7)
days a week throughout the term of this Agreement.
Intersections agrees that from time to time the
Services may be inaccessible or inoperable for any
reason, including, without limitation: (i) equipment
malfunctions; (ii) periodic maintenance procedures or
repairs which Equifax may undertake from time to
time; or (iii) causes beyond the control of Equifax
or which are not reasonably foreseeable by Equifax,
including, without limitation, interruption or
failure of telecommunication or digital transmission
links, hostile network attacks, network congestion or
other failures. Intersections agrees that Equifax
does not represent or warrant the availability of
Services on a continuous or uninterrupted basis.
Equifax will provide Intersections with reasonable
advance notice for all scheduled times in which the
Services will be inoperable or inaccessible. Promptly
after becoming aware that the Services are inoperable
or inaccessible due to an unscheduled condition
causing inoperability or inaccessibility, Equifax
will notify Intersections of the condition.
Notwithstanding the above, this section 1.2 is
subject to and limited by Exhibit C, "Transition
Period Services."
1.3. Equifax Materials. In connection with performance of
the Services and at the sole discretion of Equifax,
Equifax may provide to Intersections certain
materials, including, without limitation, computer
software (in object code or source code form), data,
documentation or information developed or provided by
Equifax or its suppliers under this Agreement, domain
names, electronic mail addresses and other network
addresses assigned to Intersections, and other
know-how, methodologies, equipment, and processes
used by Equifax to provide the Services to
Intersections ("Equifax Materials"). Equifax
Materials
1
do not include any software, models, information or
other materials licensed to Intersections under the
Services Agreement.
1.4. Intersections Content. Intersections shall be solely
responsible for providing, updating, uploading and
maintaining the Site and any and all files, pages,
data, works, information and/or materials on, within,
displayed, linked or transmitted to, from or through
the Site, including, without limitation, trade or
service marks, images, photographs, illustrations,
graphics, audio clips, video clips, email or other
messages, metatags, domain names, software and text
("Intersections Content"). Intersections shall be
solely responsible for the maintenance and security
of the Site and their systems, including without
limitation, content management. The Intersections
Content shall also include any registered domain
names provided by Intersections or registered on
behalf of Intersections in connection with the
Services. To the extent that Equifax is required to
receive, load or otherwise handle Intersections
Content in order to perform the Services, all
Intersections Content to be displayed on the Site
shall be provided to Equifax in a "server-ready"
condition, which is a condition whereby such
Intersections Content is compatible with Equifax's
software, hardware and other systems and requires no
additional manipulation by Equifax; in the event the
Intersections Content is not "server-ready", Equifax
retains the right to reject such material.
Notwithstanding the above, this section 1.4 is
subject to and limited by Exhibit C, "Transition
Period Services."
2. LICENSES AND PROPRIETARY RIGHTS
2.1. License of Intersections Content. Intersections
grants to Equifax a non-exclusive, non-transferable
license, for the term of this Agreement, to copy,
display, use and transmit on and via the Internet the
Intersections Content in connection with Equifax's
performance or enforcement of this Agreement.
2.2. [Section intentionally omitted]
2.3. Equifax Proprietary Rights. Equifax retains all
right, title and interest (including copyright and
other proprietary or intellectual property rights) in
the Equifax Materials and all legally protectable
elements, derivative works, modifications and
enhancements relative to the Equifax Materials (the
"Equifax Derivative Materials"). To the extent that
ownership of the Equifax Materials do not
automatically vest in Equifax by virtue of this
Agreement or otherwise, Intersections agrees to
transfer and assign to Equifax all right, title and
interest in the Equifax Materials and Derivative
Materials. Upon any termination or expiration of this
Agreement, Intersections shall return all Equifax
Materials (including the Equifax Derivative
Materials) to Equifax and erase and remove all copies
of all Equifax Materials (including the Equifax
Derivative Materials) from any computer equipment and
media in Intersections' possession, custody or
control.
2.4. Intersections Proprietary Rights. Intersections
retains all right, title and interest (including
copyright and other proprietary or intellectual
property rights) in the Intersections Content and all
legally protectable elements, derivative works,
modifications and enhancements relative to the
Intersections Content (the "Intersections Derivative
Content"). To the extent that ownership of the
Intersections Content does not automatically vest in
Intersections by virtue of this Agreement or
otherwise, Equifax agrees to transfer and assign to
Equifax all right, title and interest in the
Intersections Content and Intersections Derivative
Content. Upon any termination or expiration of this
Agreement, Equifax shall promptly return all
Intersections Content (including the Intersections
Derivative Content) to Equifax and erase and remove
all copies of all Intersections Content (including
the Intersections Derivative Content) from any
computer equipment and media in Equifax's or its
agents possession, custody or control.
2
3. SITE AND SERVICES TERMS AND LIMITATIONS
3.1. Storage and Security. Equifax will provide
Intersections with virtual private networking access
to the Server and Site so that Intersections can
update and modify the Intersections Content on the
Server and Site. Intersections is solely responsible
for procuring all "front-end" communications
equipment and connections linking Intersections'
network to the Internet. Intersections has sole
responsibility for maintaining all necessary access
control mechanisms and security protocols to ensure
the security of and limited availability to the
virtual private network access to the Server and
Site. Intersections grants Equifax the right to
perform security audits of Intersections's systems
and procedures to ensure Intersections's compliance
with this Section 3.1. Equifax will use commercially
reasonable efforts to make a full tape back-up of the
Intersections Content on a weekly basis and perform
daily incremental tape back-ups of the Intersections
Content, with hourly copies of database roll-back log
to disk. Notwithstanding the above, this section 3.1
is subject to and limited by Exhibit C, "Transition
Period Services."
3.2. Acceptable Use Policy. Intersections is solely
responsible for all acts, omissions and use of the
Services, the Site or any Intersections Content or
other content displayed, linked, transmitted through
or stored on the Server. Intersections agrees not to
engage in unacceptable use of any Services, which
includes, without limitation, use of the Services to:
(i) disseminate or transmit unsolicited messages,
chain letters or unsolicited commercial email; (ii)
disseminate, transmit or link to any material that,
to Equifax may be abusive, obscene, pornographic,
defamatory, harassing, grossly offensive, vulgar,
threatening or malicious; (iii) disseminate, transmit
or link to files, graphics, software or other
material, data or work that actually or potentially
infringes the copyright, trademark, patent, trade
secret or other intellectual property right of any
person; (iv) create a false identity or to otherwise
attempt to mislead any person as to the identity,
source or origin of any communication; (v) export,
re-export or permit downloading of any message or
content in violation of any export or import law,
regulation or restriction of the United States and
its agencies or authorities, or without all required
approvals, licenses and/or exemptions; (vi)
interfere, disrupt or attempt to gain unauthorized
access to any computer system, server, network or
account for which Intersections does not have
authorization to access or at a level exceeding
Intersections's authorization; (vii) disseminate or
transmit any virus, trojan horse or other malicious,
harmful or disabling data, work, code or program; or
(viii) engage in any other activity deemed by Equifax
to be in conflict with the spirit or intent of this
Agreement or any Equifax policy.
3.3. Rights of Equifax. Intersections agrees that Equifax
may remove or disable access to all or any portion of
the Site or Intersections Content stored on the
Server if Intersections or the Intersections Content
breaches its obligation under this Agreement or
violates any law, rule, regulation or Equifax policy.
Equifax has no obligation to monitor the Site or any
Intersections Content, but reserves the right in its
sole discretion to do so.
3.4. No Use of Trademarks or Intellectual Property of
Equifax. Intersections has no right to use the
Equifax name, logo or any other trademarks or service
marks of Equifax in any advertising, signage,
marketing materials or other materials in any medium,
including without limitation, on the Site, without
the express advance written permission of Equifax.
Such permission may be given or denied by Equifax in
its sole discretion and, if given, will be subject to
applicable usage procedures and standards of Equifax.
4. PAYMENT TERMS. Intersections shall pay Equifax for the
Services as follows:
4.1. Intersections shall pay Equifax a nonrecurring "set
up" fee in the amount of $** ("Nonrecurring Fee")
within ** days of the Effective Date of this
Agreement.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
3
4.2. Beginning on the date that Equifax begins hosting the
Site either pursuant to Exhibit C or by providing the
Services set forth in this Agreement, but in no event
later than ** months from the date of this Agreement,
pro-rated as applicable in the month hosting begins
or on such six month date, Intersections shall pay
Equifax a recurring fee in the amount of $** per **
("Recurring Fee") due in advance and payable no later
than ** days after receipt of Equifax's invoice. Such
Recurring Fee shall be increased by $** per **
(totaling $** per **) effective upon the date of the
Equipment Purchase (as set forth in Section 1.1),
pro-rated as applicable in the month of purchase.
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
4.3. If ISDN connectivity, toll-free access, international
or non-continental service or other extraneous
services, facilities or communications connections
are provided by Equifax, same will be for a separate
charge as invoiced by Equifax, payable by
Intersections no later than thirty (30) days after
receipt of Equifax's invoice.
4.4. In the event that Intersections exceeds the scope of
the Services as set forth at Exhibit A, including but
not limited to, additional hardware, software or
communications equipment, available bandwidth,
traffic, etc. ("Additional Charges"), Intersections
shall pay Equifax for all charges and expenses
incurred or allocated by Equifax and invoiced
(payable within thirty (30) days after receipt),
and/or such revised Recurring Fee as the parties
negotiate in good faith.
4.5. Interest will accrue daily on all amounts not timely
paid at the rate of **% per month. The prices/fees
are exclusive of any federal, state or local sales,
excise, use, value-added or other taxes with respect
to the Services under this Agreement, which taxes are
the sole responsibility of Intersections to pay those
taxes, and Equifax may separately invoice them (with
the exception of taxes on income of Equifax, which
shall at all times remain the responsibility of
Equifax).
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
5. LIMITED WARRANTIES AND DISCLAIMER
5.1. Equifax Limited Warranties. Equifax warrants that (i)
it, and each of the subcontractors that it uses to
provide and perform the Services, have the necessary
knowledge, skills, experience, qualifications and
resources to provide and perform the Services in
accordance with this Agreement; (ii) the Services
will be performed in a diligent, workmanlike manner
which meets or exceeds industry standards applicable
to the performance of such services; and (iii) that
the Services, throughout the term of this Agreement
shall conform substantially to the specifications as
set forth in Exhibit A, as subject to and limited by
Exhibit C, "Transition Period Services."
5.2. Intersections Warranties. Intersections warrants
that: (i) it has the power and authority to enter
into and perform its obligations under this
Agreement; (ii) the Intersections Content does not
and shall not contain any content, materials, data,
work, trade or service xxxx, trade name, link,
advertising or services that actually or potentially
violate any applicable law or regulation or infringe
or misappropriate any proprietary, intellectual
property, contract or tort right of any person or the
terms of this Agreement; and (iii) it owns the
Intersections Content and all proprietary or
intellectual property rights therein, or has express
authorization from the owner to copy, use and display
the Intersections Content on and within the Site.
5.3. Disclaimer of Warranty. EXCEPT AS EXPRESSLY STATED IN
THIS SECTION 5, EQUIFAX MAKES NO OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR
FITNESS FOR A PARTICULAR PURPOSE, CONCERNING ANY
SUBJECT MATTER OF THIS AGREEMENT.
4
6. LIMITATION OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE
OTHER PARTY OR ANY THIRD PARTY FOR ANY SPECIAL, EXEMPLARY,
PUNITIVE, INDIRECT. MULTIPLE, INCIDENTAL OR CONSEQUENTIAL
DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
WHETHER BASED IN CONTRACT, TORT (INCLUDING, WITHOUT
LIMITATION, NEGLIGENCE) OR ON ANY OTHER LEGAL OR EQUITABLE
GROUNDS. EXCEPT FOR THE FEES AND EXPENSES PAYABLE BY
INTERSECTIONS TO EQUIFAX, IN NO EVENT WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY IN THE AGGREGATE WITH RESPECT TO ANY
AND ALL BREACHES AND DEFAULTS UNDER THIS AGREEMENT FOR AN
AMOUNT GREATER THAN THE FEES PAID BY INTERSECTIONS TO EQUIFAX
DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY ACT OR OMISSION
GIVING RISE TO ANY POTENTIAL LIABILITY.
7. INDEMNIFICATION
7.1. By Intersections. Intersections shall indemnify,
defend and hold Equifax and its affiliates harmless
upon demand, from and against any and all
liabilities, claims, demands, actions, causes of
action, suits, costs, damages, compensation,
penalties, expenses (including, without limitation,
attorney's fees and costs of litigation) and
obligations of any kind or nature whatsoever arising
out of or related in any way to any claim, demand,
suit and/or judgment brought or asserted by any third
party against Equifax or any of its affiliates
resulting from: (i) Intersections's breach of Section
3.2 or its obligations as described and contemplated
in Exhibit C; (ii) Intersections' use of the Services
or an Internet user's use of the Services or access
to the Site; (iii) any allegation that the Site or
Intersections Content infringes a third person's
copyright, trademark or proprietary or intellectual
property right, or misappropriates a third person's
trade secrets; or (iii) Intersections's gross
negligence or willful misconduct. Intersections
agrees that Equifax shall have the right to
participate in the defense of any such claim through
counsel of its own choosing.
7.2. By Equifax. Equifax shall indemnify, defend and hold
Intersections harmless upon demand, from and against
any and all liabilities, claims, demands, actions,
causes of action, suits, costs, damages,
compensation, penalties, expenses (including, without
limitation, attorney's fees and costs of litigation)
and obligations of any kind or nature whatsoever
arising out of or related in any way to any claim,
demand, suit and/or judgment brought or asserted by
any third party against Intersections or any of its
affiliates resulting from claims based on (i) any
allegation that the Equifax Materials infringe a
third person's copyright, trademark or proprietary or
intellectual property right, or misappropriates a
third person's trade secrets; or (ii) Equifax's gross
negligence or willful misconduct. Equifax agrees that
Intersections shall have the right to participate in
the defense of any such claim through counsel of its
own choosing.
8. TERM AND TERMINATION
8.1. Term. Except as provided in this Section 8, this
Agreement shall be for an initial term of five (5)
years, commencing with the Effective Date hereof. The
Agreement shall automatically renew for successive
one (1) year terms unless terminated by either party
upon thirty (30) days prior written notice to the
other party of its intent not to renew.
8.2. Right to Purchase. One (1) year after the Effective
Date, Intersections will have the right to purchase
from Equifax the hardware, software and other
equipment used to provide the Services as identified
on Exhibit B (the "System") in order to transfer the
System to Intersections. Equifax will only transfer
to Intersections the portions of the System that it
is permitted to or capable of transferring. If
Intersections desires to exercise this option, the
parties will negotiate in good faith a mutual
agreement for the purchase price for the System,
giving consideration to current and future
depreciation schedules and transition periods, and
all other terms and conditions relating to such
purchase; provided, however,
5
that the then current book value of the equipment
shall be the primary basis for determination of such
purchase price.
8.3. Termination. Either party may terminate this
Agreement immediately upon the occurrence of any one
or more of the following events: (i) any material
breach by the other party of any term of this
Agreement which such breaching party fails to cure
within thirty (30) days of its receipt of written
notice of such breach from the nonbreaching party;
and (ii) upon the termination or expiration of the
Services Agreement.
8.4. Rights Upon Termination. In the event this Agreement
is terminated for any reason, Intersections shall pay
Equifax, on a pro rata basis, for all Services
provided to Intersections up to the date of
termination.
8.5. Impracticability. Notwithstanding anything to the
contrary in this Agreement, if the continued
provision of all or any portion of the Services
becomes impossible, impractical, or undesirable due
to a change in applicable federal, state or local
laws or regulations, as determined by Equifax in its
reasonable judgment, Equifax and Intersections will
in good faith renegotiate the affected portion of the
Services and this Agreement. Equifax may suspend the
affected portion of the Information Services until
the parties have completed the renegotiation of the
Agreement. Equifax will attempt to provide written
notice of its actions as far in advance of the
effective date as is reasonably possible under the
circumstances.
9. CONFIDENTIALITY. A party's "Confidential Information" is
defined as any confidential or proprietary information of a
party that is treated as secret by that party and its
affiliates (that is, it is the subject of efforts by that
party and its affiliates that are reasonable under the
circumstances to maintain its secrecy). Each party will
protect the other party's Confidential Information with at
least the same level of care that it uses to protect its own
information of a similar nature, but in no event less than a
reasonable standard of care, and will not disclose that
Confidential Information to third parties nor use the other
party's Confidential Information for any purpose other than as
required to perform under this Agreement. Confidential
Information does not include information which (a) is already
known by the recipient at the time of disclosure, (b) becomes,
through no act or fault of the recipient, publicly known or
available, (c) is received by recipient from a third party who
had a lawful right to and, without a breach of duty owed to
the disclosing party, did disclose such information to it, or
(d) is independently developed by recipient without reference
to the Confidential Information. Notwithstanding the
foregoing, either party may disclose the other party's
Confidential Information to its affiliates and/or
subcontractors who have a need to know the Confidential
Information and who agree to observe and abide by the
confidentiality obligations under this Agreement. The
restrictions on the Confidential Information will not apply to
Confidential Information that is required to be disclosed by a
court or government agency; however, the party obligated to
disclose the other party's Confidential Information will
promptly notify the other party so that it may seek a
protective order and will make a reasonable effort itself to
obtain a protective order for or otherwise protect the
Confidential Information. The parties' confidentiality
obligations under this Section 9 will continue indefinitely
for so long as the Confidential Information is a trade secret
under applicable law and will continue with regard to the
Confidential Information that is not a trade secret for two
(2) years following the termination of this Agreement, or
until that earlier date, if any, when it no longer qualifies
as Confidential Information. Each party acknowledges that
breach of this Section 9 could cause irreparable harm to the
other party for which monetary damages may be difficult to
ascertain or an inadequate remedy. Each party therefore agrees
that the disclosing party may, in addition to any other rights
and remedies, seek injunctive relief for any violation or
breach of this Section 9.
10. DISPUTE RESOLUTION. Any dispute arising out of or relating to
this Agreement will be resolved in accordance with the
applicable dispute resolution procedures specified in the
Services Agreement.
6
11. GENERAL
11.1. Assignment. Intersections may not assign this
Agreement, or any portion thereof, without the prior
written consent of Equifax. Any transaction or series
of transactions including, without limitation, any
merger, consolidation, or other reorganization of
Intersections, or any Intersections affiliate, or
any issuance, sale, transfer or redemption of any
capital stock of Intersections, or interests in
Intersections, that results in a change of control of
Intersections, will be deemed to be an assignment of
this Agreement. Equifax may subcontract any of the
work, services, or other performance required of
Equifax under this contract without the consent of
Intersections. Equifax will be responsible for all
work performed by its subcontractors and agents as if
it were performing the work itself.
11.2. Consent to Breach Not Waived. Neither party will, by
the lapse of time, and without giving written notice,
be deemed to have waived any of its rights under this
Agreement. No waiver of a breach of this Agreement
will constitute a waiver of any prior or subsequent
breach of this Agreement.
11.3. Notices. Notices must be in writing, must be
delivered according to clause (a) or (b) below, and
must be delivered to the address set forth on the
signature page of this Agreement, or to such other
address as a party may designate by notice in
accordance with this provision. All notices under
this Agreement will be deemed given on the date of
delivery (a) by a nationally recognized overnight
courier, or (b) by certified mail, return receipt
requested.
11.4. Force Majeure. Neither party will be liable to the
other for any delay or interruption in performance as
to any obligation hereunder resulting from
governmental emergency orders, judicial or
governmental action, emergency regulations, sabotage,
riots, vandalism, labor strikes or disputes, acts of
God, fires, electrical failure, major computer
hardware or software failures, equipment delivery
delays, acts of third parties, or delays or
interruptions in performance beyond its reasonable
control.
11.5. Entire Agreement; Amendment. This Agreement and any
other agreement, Exhibit or Addendum referenced
herein, constitutes the entire agreement of the
parties with respect to the subject matter contained
herein and may not be amended except by a written
agreement that acknowledges modification of this
Agreement, and that is signed by an authorized
representative of Intersections and of Equifax, or as
otherwise expressly provided in this Agreement. This
Agreement will not be more strongly construed against
either party, regardless of who is more responsible
for its preparation.
11.6. Severability. If any part of this Agreement is found
to be illegal or unenforceable, then that part will
be curtailed only to the extent necessary to make it,
and the remainder of the Agreement, legal and
enforceable.
11.7. Applicable Law. This Agreement will be governed
solely by the internal laws of the State of Georgia,
without regard to principles of conflicts of law.
11.8. Independent Contractor. Nothing in this Agreement
creates a joint venture, partnership, principal-agent
or mutual agency relationship between the parties. No
party has any right or power under this Agreement to
create any obligation, expressed or implied, on
behalf of the other party.
11.9. Headings. The titles or captions used in this
Agreement are for convenience only and will not be
used to construe or interpret any provision hereof.
11.10. Service. To maintain quality service, telephone
communications with Intersections may be monitored
and/or recorded without further notice or disclosure.
7
11.11. Survival. The definitions of this Agreement and the
respective rights and obligations of the parties
under Sections 2.3, 4, 5, 6, 7, 8.4, 9, 10 and 11
shall survive any termination or expiration of this
Agreement.
IN WITNESS WHEREOF, the parties, by their duly authorized
representatives, have executed this Agreement below.
INTERSECTIONS CORPORATION EQUIFAX INFORMATION SERVICES, INC.
ADDRESS: XX XXX 000000 0000 XXXXXXXXX XXXXXX, XX
XXXXXXXXX, XX 00000-0000 XXXXXXX, XXXXXXX 00000
SIGNED BY: __________________________ SIGNED BY: ________________________
PRINTED NAME PRINTED NAME:
TITLE: TITLE:
8
EXHIBIT A
HOSTING SERVICES AND SPECIFICATIONS
Notwithstanding the terms below, this Exhibit A is expressly subject to and
limited by Exhibit C, "Transition Period Services."
1. Equifax shall make available to Intersections the WebSpace. For
purposes of this Exhibit, "WebSpace" shall mean the number of megabytes ("MB")
or gigabytes ("GB") of disk storage space per specific Server as set forth
below:
Server WebSpace
--------------------------------------------------
Database Server 50gb
--------------------------------------------------
Application Server 20gb
--------------------------------------------------
Web Server 250mb
--------------------------------------------------
2. Equifax shall make available to Intersections 2000 kilobits per second
of bandwidth capacity. For purposes of this Exhibit, "Bandwidth" shall be
defined as the total capacity of information which can be carried by a channel
of electronic communication, such as T1, ISDN, Frame Relay or other line of
communication, as measured in kilobytes per second ("KPS").
3. The Services set forth in Section 1 and 2 of this Exhibit A above are
covered by the Recurring Charges. However, as set forth in section 4.4, whenever
the bandwidth capacity or WebSpace amount exceeds the amounts set forth in
Sections 1-2 above, surcharges above the Recurring Fees ("Additional Charges")
shall apply according to Equifax' then current rates.
4. Equifax will provide the hardware and software listed on Exhibit B
hereto that is necessary for Intersections to access and receive the information
services provided under this Agreement.
5. Intersections will utilize at least 128 bit SSL/TSL or equivalent
strength encryption to transmit all Confidential Information to and from
Equifax, Intersections and third parties. Intersections shall be responsible for
the procurement of SSL digital certificates to be utilized on Equifax's shared
web servers. The Services will be provided in a manner that will meet or exceed
generally accepted industry standards for Internet security and applicable
Equifax policies.
6. Equifax will provide the following technical support to Intersections:
a) provide Intersections a telephone/pager number for
direct technical response from knowledgeable and
experienced personnel with response times as agreed
to by the parties; and
b) technical support for system, network and
backup/recovery issues.
The fee to be paid by Intersections for such technical support services
shall be $** for the first ** calls; and should Intersections require additional
technical support, to the extent available and provided by Equifax,
Intersections shall pay $** per ** for such additional support.
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
7. Equifax will monitor systems for critical device information, such as
CPU utilization, using industry standard tools and techniques. Reports on system
resources will be made available to Intersections as reasonably requested on an
as needed basis.
8. Equifax will make system and network personnel and resources available
to assist Intersections with audits for a period of ** total hours per year.
Should Intersections require additional time for audits, Equifax will make these
available at a rate of $** per **.
----------
** This information is confidential and has been omitted and filed
with the Securities and Exchange Commission.
9
9. Equifax will make available to Intersections an Internet capable simple
mail transfer protocol server (SMTP) to which to send mail.
Intersections understands that their use of this service must comply
with Section 3.2 of this document.
10. With respect to the web hosting Services set forth in this Agreement.
Equifax shall include Intersections as a covered customer under any
"Disaster Recovery" plan Equifax has in place from time to time. The
terms and conditions of any such plan shall be determined by Equifax in
its sole discretion and may be changed from time to time. Upon
occurrence of a "disaster" declared by Equifax, Equifax shall use its
commercial best efforts to restore the Services in accordance with
Equifax's disaster recovery plan in place at the time of the disaster.
Intersections acknowledges that Equifax has made no guaranty or
warranted any specific period of time for such recovery, and such
period may exceed 120 days or more.
11. Equifax agrees that with respect to the performance of the Services set
forth in this Agreement, Equifax shall maintain ICSA or equivalent
industry standard penetration testing to ensure network integrity and
will re-certify same on an annual basis.
12. The parties agree that within thirty (30) days from the date hereof,
the parties will mutually agree upon additional service level
obligations, which obligations will be (a) consistent with the service
levels set forth in Exhibit I of the Services Agreement but only to the
extent such levels are appropriate and applicable to the hosting
services set forth in this Agreement, and (b) to the extent not
inconsistent with the service levels currently set forth herein.
10
EXHIBIT B
HARDWARE AND SOFTWARE
HARDWARE (Web Servers, Application Servers, Database Servers, Development
Servers)
Four Sun 420R (or equivalent) servers
- Two configured with Sun Cluster and Oracle 8.1.X, with 50gb
shared DASD:
- DASD to be configured in a RAID1 fashion;
- Two configured with IBM WebSphere Application Server,
Advanced Edition Cabinets
SOFTWARE
Equifax standard backup software;
Solaris 8;
WebSphere Application Server, Advanced Edition
11
EXHIBIT C
TRANSITION PERIOD SERVICES
In order to accommodate the request of Intersections, for a period of
up to six (6) months from the Effective Date of this document, Intersections may
utilize the Equifax Internet facility for hosting purposes only.
1. Intersections shall be responsible for the shipment and installation of
all hardware, software and other necessary equipment. The hardware will remain
property of Intersections and shall be returned upon request, with shipment
covered at Intersections' expense. Equifax will provide environmentally
controlled datacenter floor space, power and network connectivity.
2. Intersections shall be responsible for all maintenance of hardware and
software on their equipment.
3. Intersections shall be responsible for the system administration,
maintenance and security of their equipment, including but not limited to backup
and recovery.
4. Bandwidth capacity shall be limited as set forth in Sections 1-2 above,
and the surcharges above the Recurring Fees ("Additional Charges") shall apply
according to Equifax's then current rates.
5. Equifax will provide "remote hands" for Intersections for a period of
up to 1 hour per week of this agreement. The remote hands service shall be
limited to power cycling hardware and exchanging tapes pursuant to
Intersections' written documentation. Equifax will ship Intersections' tapes off
site upon request using its standard provider for these services.
6. Intersections will utilize at least 128 bit SSL/TSL or equivalent
strength encryption to transmit all Confidential Information to and from
Equifax, Intersections and third parties. Intersections shall be responsible for
the procurement of SSL digital certificates. The Services will be provided in a
manner that will meet or exceed generally accepted industry standards for
Internet security and applicable Equifax policies.
7. Equifax will not monitor systems hosted under this transition services
arrangement.
During this transition period, with period shall end on that date which is
mutually agreed by the parties (not to exceed 6 months from the Effective Date),
Equifax shall only be responsible for providing environmentally controlled
datacenter floor space, power and network connectivity, and the obligations in 5
above. ALL OTHER OBLIGATIONS SET FORTH IN THIS AGREEMENT FOR PERFORMING THE
SERVICES SHALL BE, DURING SUCH TRANSITION PERIOD, THE RESPONSIBILITY OF
INTERSECTIONS AND NOT EQUIFAX. Equifax shall not be held liable for any loss
arising in any way out of actions, or in-actions, that are the responsibility of
Intersections during such transition period.
12
EXHIBIT I
**
----------
** This information is confidential and has been omitted and filed separately
with the Securities and Exchange Commission.
Page I-1
Page I-4
ADDENDUM NUMBER TWO
TO
MASTER AGREEMENT FOR MARKETING,
OPERATIONAL AND COOPERATIVE SERVICES
THIS ADDENDUM NUMBER TWO ("ADDENDUM") to the Master Agreement for
Marketing, Operational and Cooperative Services dated as of November 27, 2001
(the "MASTER AGREEMENT") among Equifax Consumer Services, Inc., a Georgia
corporation ("EQUIFAX"), Intersections Inc., a Delaware corporation and
CreditComm Services LLC, a Delaware limited liability company, is made as of May
31, 2002. Intersections Inc. and CreditComm Services LLC are collectively
referred to herein as "INTERSECTIONS" and shall be jointly and severally
responsible for all obligations of Intersections hereunder. Capitalized terms
used herein and not otherwise defined shall have the meaning set forth in the
Agreement.
WHEREAS, the Agreement sets forth the terms and conditions on which the
parties are to provide specified services to one another and to their respective
Users; and
WHEREAS, the parties desire to provide similar services to customers of
third parties, initially including Capital One Bank and certain affiliates,
under private labeling arrangements; and
WHEREAS, the parties intend to establish the terms and conditions on
which they will provide such similar services;
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. Private Labeling Services. Each private labeling service opportunity
proposed by either party shall be deemed a Cooperative Opportunity and shall be
promptly and diligently evaluated by the parties as such, but without reference
to the timing requirements of Section 6.1.1 of the Master Agreement. If the
parties agree to pursue any such Cooperative Opportunity, they shall document
such agreement in the form of a "PROJECT AGREEMENT" that (i) makes reference to
this Addendum, (ii) provides the terms and conditions set forth in clauses (a)
through (k) of Section 6.1.1 of the Master Agreement, provided that inapplicable
terms may be omitted, and (iii) includes as an annex the underlying agreement
for services to be provided to the third party. The Project Agreement for the
Capital One project is attached hereto as Exhibit A.
2. Master Agreement. Except as specifically set forth in this Addendum,
this Addendum supplements and is incorporated into, but does not alter or
supersede, the Master Agreement. Except as specifically set forth in a Project
Agreement, no Project Agreement shall supersede or amend this Addendum or the
Master Agreement. Each Project Agreement shall be deemed to be an Exhibit to the
Master Agreement for purposes thereof. Services provided by
1
Intersections pursuant to a Project Agreement shall be deemed to be
Intersections Services, and services provided by Equifax pursuant to a Project
Agreement shall be deemed to be Equifax Services, for all purposes under the
Master Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
executed by their respective authorized representatives.
EQUIFAX, CONSUMER SERVICES INC. INTERSECTIONS INC.
By: By:
------------------------------- -------------------------------
Name: Name:
----------------------------- -----------------------------
Title: Title:
---------------------------- ----------------------------
CREDITCOMM SERVICES, LLC.
By:
------------------------------
Name:
----------------------------
Title:
----------------------------
2
