Confidential Treatment Requested
Under 17 C.F.R. 200.80(b)(4).
200.83 and 240.24b-2.
BUSINESS MARKETING SERVICES RESELLER AGREEMENT
This Business Marketing Services Reseller Agreement (the "Agreement) is
entered into effective as of this 4th day of December, 1998, by and between
MySoftware Company having an address at 0000 X. XxxXxxxx Xxxx, Xxxx Xxxx, XX.
00000 (hereinafter referred to as "Reseller") and Experian Information
Solutions, Inc., an Ohio Corporation acting by and through its Information
Solutions Division and having an address at 000 Xxxx Xxxxxxx Xxxx, Xxxxxx,
Xxxxxxxxxx 00000 (hereinafter referred to as "Experian").
Whereas, Reseller desires to obtain, and Experian agrees to grant to
Reseller, on the terms and conditions set forth herein, a non-exclusive,
nontransferable license to resell the Experian services defined in Exhibit A
(the "Services") to its Customers.
Now, therefore, in consideration of the premises set forth herein and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, and intending to be legally bound hereby, Experian and Reseller
hereby agree as follows:
1. APPOINTMENT.
Experian hereby grants Reseller a non-exclusive, nontransferable
license to resell the Services solely to customers located entirely within
the territory defined in Exhibit A ("Customers"). Such license is subject
to the terms and conditions set forth herein. Experian will provide to
Reseller a copy of the Experian business marketing database ("Experian
Data") from which Reseller will fulfill orders for Services received from
Reseller's end-user customers. Experian will provide identity and logo
standards and requirements to Reseller.
2. RESELLER OBLIGATIONS.
A. Reseller shall actively advertise, promote and sell the Services to
its Customers. Reseller shall randomly select mail pieces from a
minimum of one [***] customers [***] in order to screen for
impermissible or unethical offers. Reseller shall obtain Experian's
prior written approval for all marketing materials, promotions,
datacards, press releases and other information used to promote the
Services where there is direct reference to Experian, and of any
subsequent substantive changes thereto.
B. Reseller will incur all administration and other costs relating to
marketing and sale of the Services including but not limited to order
generation and tracking, invoicing and collections.
C. Within [***] days of the close of each calendar month, Reseller will
provide to Experian a billable activity report detailing all orders
received by Reseller for Experian Data during the prior month. The form
and content shall be reasonably requested by Experian, but at a minimum
provide the [***]. Reseller will develop and maintain, during the
Term of the Agreement, an on-line activity report system in the above
noted form and content. Reseller will be responsible for updating
this on-line activity report with the most current information as
noted abouve thoughout the term of the Agreement. Experian will have
access to this on-line activity report to check all orders received by
Resellar relating to Experian Data.
D. Resellar will submit a sales tax exemption certificate to Experian at
time of signing of this Agreement.
E. Resellar will limit all sales of Experian Business Marketing Services
data to a maximum of [***] per end-user Customer.
[***] Confidential treatment requested.
F. Resellar may provide, on a one time basis to each new end-user customer
up to [***] free records for promotional purposes only. Resellar may
provide to a value-added resellar ("VAR") no more than [***] free
records per month for test purposes only.
G. The pricing contained in Exhibit C is contingent upon Reseller's
contribution of data to Experian under this Agreement. Reseller shall
provide its customer database file to Experian, including such data
with respect to online data customers, provided, however, that such
list shall not separately identify such customers from Reseller's
software customers. Reseller's customer database file provided to
Experian shall be in an automated format resonably specified by
Experian. If Reseller's data contribution is more than [***] days
delinquent from the specified quarterly submission date, then Experian
reserves the right to renegotiate the pricing in Exhibit C of this
Agreement. Experian will bear the expense of incorporating the data
Reseller contributes into Experian's database and, as so incorporated,
the data will become the property of Experian. At Experian's resonable
request, Reseller will use commercially resonable efforts verify the
accuracy (againinst Reseller's records) of the data Reseller
contributes. Reseller shall continue to provide updated data and data
on new accounts that Reseller acquires for the term of this Agreement.
Reseller will bear the expense of preparing and delivering all
contributed data to Experian. Experian may use the contributed data
as part of compiled lists for any purpose, including but not limited
to statistical analysis and marketing lists; provided, however, that
Experian will use reasonable efforts to not release specific information
identifying any listed business entity as Reseller's customer or
which identifies Reseller as the source of any specific contributed
inforamtion. Experian agrees that it shall not, with respect to any
"Direct Competitor" of Reseller; (i) perform any services or provide
any products which make use of or disclose Reseller's data on a
stand-alone basis. For purposes of the Agreement, the term "Direct
Competitor" shall xxxxx any party owning or in possession of Internet
list or data sales software. Direct Competitors of MySoftware shall
include, but are not limited to each of the following companies and its
parent, if any, and subsidiaries of each such company and its parent:
[***].
3. EXPERIAN OBLIGATIONS.
Experian will provide updates to the Experian Data in the manner and at
the times specified on Exhibit A hereto.
3A. FUTURE ARRANGEMENTS.
Experian and Reseller shall continue to work together in good faith for a
minimum of [***] to reach definitive agreements regarding [***]. Neither
party shall have any obligation with respect to such arrangements until
agreement is reached on definitive agreements specifying the rights and
obligationsof the parties. No alleged breach of this provision shall be
the basis for any termination of or other action under this Agreement.
4. PAYMENT.
Reseller will pay Experian for the Services according to the amounts set
forth in Exhibit A. Reseller will submit payment to Experian within [***]
days of the close of each calendar month in accordance with the Royalties
owing to Experian as detailed on the Monthly Activity Report. Except as
set forth in Exhibit A, Reseller shall pay any undisputed invoiced fees
within [***] days of invoice date. If Reseller does not pay within [***]
days Reseller will also pay interest on the unpaid amount as the reate of
one and one-half percent (1.5%) per month or the highest amount
[***] Confidential treatment requested.
permitted by law. The prices and rates for the Services do not include
applicable federal, state or local taxes, and Reseller shall be solely
responsible for the payment thereof.
5. USE RESTRICTIONS.
A. Reseller expressly agrees that it will not use and will prohibit its
Customer's use of any information provided by Experian ("Data") as a
factor in establishing an individual's eligibility for (i) credit or
insurance to be used primarily for personal, family or household
purposes, or (ii) employment. Reseller shall comply with all applicable
laws, regulations and ordinances, and all special use restrictions set
forth in this Agreement or reasonably adopted by Experian hereafter.
Under no circumstances will Reseller attempt, directly or indirectly,
to discover, reverse engineer, decompile or disassemble any confidential
or proprietary criteria developed or used by Experian in providing the
Services.
B. Reseller shall provide the Services to end-user Customers on a license
or rental basis and without conveying title to any Experian Data.
Reseller agrees that it will not, without the prior written consent of
Experian, provide any Data or Services to any person for resale,
sublicense, sublease, disclosure or transfer to any third party, except
as specifically provided in Subsection 5.C. Reseller shall keep the
Experian Data separate from any other data possessed by Reseller or
utilize the Experian Data to create any database.
C. Upon the prior written consent of Experian, which consent shall not be
unreasonable be withheld, Reseller will have the ability to develop
private-label branded sites for Reseller's private label partners for the
purposes of reselling Experian Data to end user Customer. For purposes
of this Agreement, a private label partner is a cusotmer of Reseller
where Reseller builds a mirror website for that customer and Experian
Data can be accessed by end-user Customers through this mirror website
(the "Private Label Partner"). For purposes of this Agreement, a mirror
website is defined as a website that resides with, is maintained and is
managed by the Reseller for the private label partner.
6. LIMITED WARRANTY.
Reseller acknowledges that amounts to be paid to Experian for the Data and
Services will generally represent a small portion of Reseller's overall
costs of the project for which the Data and Services will be used.
Reseller also acknowledges that the type of Data and Services licensed by
Experian will contain a degree of error. Finally, Reseller acknowledges
that the prices Experian charges for the data and Servies are based, in part
upon Experian's expectation that the risk of any loss or injury that may
be incurred by use of the Data and Services will not be borne by Experian.
For these reasons, Reseller agrees that it is responsible for determining
that all Data licensed by Experian is suffucuently accurate for Reseller's
Customer's purposes. If Reseller finds that the Data does not comply with
the requirements of the Job Specifications due to the fault of Experian,
then Reseller must so notify Experain within [***] days after the receipt
of the Data. After its receipt of such notice, Experian shall, at its
option, either correct the defect or refund any amounts paid by Reseller
for the defective Data. EXPERIAN DOES NOT GUARANTEE OR WARRANT THE
ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE SERVICES, DATA OR THE MEDIA ON WHICH THE DATA IS
PROVIDED AND SHALL NOT BE LIABLE TO RESELLER OR TO ANY OF RESELLER'S
CUSTOMERS FOR ANY LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN
PART BY EXPERIAN'S ACTS OR OMISSIONS, WHETHER NEGLIGENT OR OTHERWISE, IN
PROCURING, COMPILING, COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR
DELIVERING THE DATA OR SERVICES. IN NO EVENT SHALL EXPERIAN BE LIABLE TO
RESELLER OR TO ANY CUSTOMER OR THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO
BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE
[***] Confidential treatment requested.
OR NOT AND HOWEVER CAUSED, EVEN IF EXPERIAN IS ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES. THIS PARAGRAPH STATES EXPERIAN'S ENTIRE LIABILITY AND THE
SOLE REMEDY OF RESELLER AND ANY CUSTOMER IN CONNECTION WITH EXPERIAN'S
PROVISION OF THE DATA AND SERVICES.
WHILE RESELLER AGREES TO USE REASONABLE EFFORTS TO ENSURE THAT THE DATA
PROVIDED HEREUNDER IS IN THE PROPER FORMAT WHEN DELIVERED TO EXPERIAN, IT
DOES NOT GUARANTEE OR WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE DATA OR THE
MEDIA ON WHICH THE DATA IS PROVIDED AND SHALL NOT BE LIABLE TO EXPERIAN OR
TO ANY OF EXPERIAN'S CUSTOMERS FOR ANY LOSS OR INJURY ARISING OUT OF OR
CAUSED IN WHOLE OR IN PART BY RESELLER'S ACTS OR OMISSIONS, WHETHER
NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING, COLLECTING, INTERPRETING,
REPORTING, COMMUNICATING OR DELIVERING THE DATA OR SERVICES. EXCEPT AS
EXPRESSLY SET FORTH ABOVE, RESELLER PROVIDES NO OTHER WARRANTY, EXPRESS OR
IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR LIABILITY
WHICH MAY ARISE UNDER SECTION 9 BELOW, IN NO EVENT SHALL RESELLER BE LIABLE
TO EXPERIAN OR TO ANY CUSTOMER OR THIRD PARTY FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO
BUSINESS REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE OR
NOT AND HOWEVER CAUSED, EVEN IF RESELLER IS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. THIS PARAGRAPH STATES RESELLER'S ENTIRE LIABILITY AND THE
SOLE REMEDY OF EXPERIAN AND ANY CUSTOMER IN CONNECTION WITH THE PROVISION
OF DATA AND THIS AGREEMENT.
7. LIMITATION OF LIABILITY.
IF, NOTWITHSTANDING THE FIRST PARAGRAPH OF THE PRIOR SECTION, LIABILITY CAN
BE IMPOSED ON EXPERIAN, THEN RESELLER AND EACH CUSTOMER AGREES THAT
EXPERIAN'S AGGREGATE LIABILITY FOR ANY OR ALL LOSSES OR INJURIES TO
RESELLER AND TO SUCH CUSTOMER ARISING OUT OF ANY ACTS OR OMISSIONS OF
EXPERIAN IN CONNECTION WITH ANYTHING TO BE DONE OR FURNISHED UNDER THIS
AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY (INCLUDING
NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT
CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE AMOUNT PAID TO
EXPERIAN BY RESELLER FOR THE DATA FURNISHED UNDER THE APPLICABLE JOB
SPECIFICATION AND RESELLER AND EACH CUSTOMER COVENANTS AND PROMISES THAT
IT WILL NOT XXX EXPERIAN FOR AN AMOUNT GREATER THAN SUCH SUM AND THAT IT
WILL NOT SEEK PUNITITVE DAMAGES IN ANY SUIT AGAINST EXPERIAN.
8. AGREEMENT OF CUSTOMERS.
Reseller agrees that it will fully apprise all Customers of and secure the
binding agreement of such Customers to the obligations, restrictions and
limitations set forth in this Agreement, including without limitation the
provisions of Sections 6 and 7 hereof, on substantially similar terms as
the Customer Certificate set forth in Exhibit D hereto. If Reseller's
Customers will be obtaining the Data and Services on-line via Reseller's
website/page, then Reseller agrees to incorporate such obligations,
restrictions and limitations into Reseller's website/page in such a way that
Customers cannot obtain the Data and Services without first agreeing to
these obligations, restrictions and limitations. Additionally, Reseller
agrees to incorporate such obligaitons, restrictions and limitations into
each private label partners website/page in such a way that Customers
cannot obtain the Data and Services without first agreeing to these
obligations restrictions and limitations. Reseller agrees to indemnify,
defend and hold harmless Experian and its officers, employees, agents,
affiliates and subsidiaries against and from any claims for losses, expenses,
damages and costs including, without limitation, attorney's fees, that may
at any time be incurred by Experian arising out of, or
related to, Reseller's failure to fulfill its obligations under this
Section. Notwithstanding anything to the contrary contained in this
Agreeent, Experian may terminate this Agreement immediately if it determines
that Reseller has failed to comply with the requirements of this Section
or if Reseller fails to remedy any Customer violation of this Section within
30 days notice of such violation.
9. WARRANTIES, REMEDIES AND INDEMNIFICATION.
Reseller will indemnify, defend, and hold Experian harmless from and
against any and all liabilities, damages, losses, claims, costs, and
expenses (including attorney's fees) arising out of or resulting from
Reseller's or any end user's use of the Experian Data including, without
limitation, (i) Reseller's or any Customer's failure to observe any use
restriction set forth herein; (ii) any claim alleging that Reseller or
any Customer violated the legal rights of another person (iii) any claim
by a third party alleging that the Services were defective in any way; or
(iv) any misrepresentation or breach of warranty by Reseller of Reseller's
nonperformance of any obligations imposed on it by this Agreement, provided
that the foregoing shall not apply to any claim arising directly as a
result of Experian's gross negligence or willful misconduct. Experian
shall provide Reseller prompt notice of and control over the defense of
any claim pursuant to this Section and shall reasonably cooperate in the
defense thereof.
10. INTELLECTUAL PROPERTY.
Reseller acknowledges that Experian has expended substantial time,
effort and funds to compile the Experian Data and that all information
contained in such database is and will continue to be the exclusive
property of Experian. Nothing contained in this Agreement shall be deemed
to convey to Reseller, any Customer, third party processor or other
party any right, title or interest, including any patent, copyright or
other proprietary right, in or to the Experian Data or any part thereof.
Reseller will not use, or permit its employees, agents, customers, and
subcontractors to use, the trademarks, service marks, logos, names, or any
other proprietary designations of Experian, or Experian's affiliates,
whether registered or unregistered, without Experian's prior written
consent.
11. TERM AND TERMINATION.
The term of this Agreement (the "Term") is the period consisting of the
Initial Term and, if this Agreement is renewed, the Renewal Term(s), as
follows:
A. Initial Term. The "Initial Term" shall begin on December 4, 1998
("Effective Date") and end at 11:59 p.m. on the day that is eighteen
months after the Effective Date.
B. Renewal Term(s). Unless one of the parties delivers to the other
written notice of such party's intent not to renew no later than
ninety (90) days prior to the expiration of the Initial Term, this
Agreement will renew automatically and without further action by either
party for an additional one-year period (a "Renewal Term").
Thereafter, this Agreement will continue to renew automatically for
successive terms of one year each unless and until either party
delivers nonrenewal notice no later than ninety (90) days before the
end of a Renewal Term.
C. Termination for Default. Reseller will be in default if it fails
to: (i) make any payment within ten (10) days after written default
notice that such is due hereunder; or (ii) perform any obligation
required to be performed by it within thirty (30) days after written
notice that such obligation has not been performed. If there is a good
faith dispute over an amount due, the parties will endeavor to
resolve the dispute by negotiation in good faith.
D. [Intentionally omitted]
E. Termination for Insolvency. Notwithstanding any other provision in
this Agreement, Experian may, upon written notice, terminate this
Agreement if there is a voluntary or involuntary liquidation,
dissolution, bankruptcy, insolvency, receivership or similar
conclusion of the business of Reseller.
F. Effect of Termination. Upon expiration or termination of this
Agreement, the license granted herein will terminate, Reseller will
cease its use and resale of the Data and will either deliver any Data
to Experian, or destroy or erase it, at Experian's option. No
cancellation, expiration or termination of this Agreement will relieve
either party of any liability for monetary sums owing to the other,
nor will a termination preclude any other actions which might be
taken by either party at law or equity to enforce lawful obligations
arising hereunder. For purposes hereof, "Termination Date" means
the date this Agreement expired or is canceled or terminated. Within
30 days after the Termination Date, Reseller and Experian will jointly
perform a final accounting of all sums due. Nothing in this Agreement
will limit, or be deemed to limit, Experian's right to sell any Data
or Service to Customers before or after the Termination Date.
12. AUDIT RIGHTS.
Experian will have the right to audit Reseller's use and resale of the
Service hereunder. Reseller will be responsible for assuring full
cooperation with Experian in connection with such audits and will provide
Experian or obtain for Experian access to such properties, records and
personnel as Experian may reasonably require for such purpose. Experian
shall not perform such audits more frequently than [***] in any calendar
year, unless Experian believes in good faith that there exists a breach
of any term of this Agreement.
13. WAIVER.
Either party may at any time waive compliance by the other with any
covenants or conditions contained in this Agreement, but only by written
instrument signed by the party waiving such compliance. No such waiver,
however, shall be deemed to constitute the waiver of any such covenant or
condition in any other circumstance or the waiver of any other covenant or
condition.
14. BINDING ARBITRATION.
If the parties are unable to resolve a dispute arising out of or relating to
this Agreement, or the parties' respective rights hereunder, then the
parties will resolve such dispute in a binding arbitration conducted under
the auspices of the American Arbitration Association in Orange County,
California. The prevailing party in any arbitration or action shall be
entitled to an award of its reasonable attorneys' fees and costs.
15. CONFIDENTIALITY.
Each party will take reasonable precautions to assure that all information
disclosed to it by the other party marked "Confidential" (or with similar
legend) is held in strict confidence and disclosed only to those of their
respective employees whose duties reasonably require access to such
information. Each party will take reasonable precautions to prevent loss,
compromise, or misuse of any media containing Experian Data while in the
possession of that party and while in transport between the parties. Except
as specifically permitted by this Agreement, under no circumstances will
either party disclose, directly or indirectly, to any other person the terms
of this Agreement.
16. RELATIONSHIP.
The parties will perform all services hereunder as independent contractors.
Nothing contained in this Agreement shall be deemed to create any
association, partnership, joint venture, or relationship of principal and
agent or master and servant between the parties. Neither this Agreement
nor any provisions set forth herein is intended to, or shall, create any
rights in or confer any benefits upon any person other than the parties
hereto.
17. SUCCESSORS AND ASSIGNS.
Neither this Agreement nor the interests of the parties in this Agreement
may be assigned, transferred, shared or divided in any manner by Reseller
without the prior written consent of Experian; such consent not to be
unreasonably withheld or delayed. Any proposed sale, transfer or other
disposition of the assets, business or
[***] Confidential treatment requested.
stock or change in controlling interest in Reseller or its parent company
(if any) shall be considered an assignment of this Agreement. This
Agreement will be binding upon and will inure to the benefit of the parties
hereto and their respective heirs, representatives, successors and permitted
assignees. Notwithstanding the foregoing, where Reseller requests
Experian's consent to assign the Agreement in connection with a proposed
sale, transfer or other disposition of the assets, business or stock or
change in controlling interest in Reseller or its parent company (if any)
or similar transaction, Experian may either: (i) approve the continuation
of this Agreement despite such sale, transfer or disposition, in which
event this Agreement will remain in full force and effect according to its
terms; or (ii) elect to terminate this Agreement as of the date of such
sale, transfer, disposition or change.
18. REFORMATION/SEVERABILITY.
If any provision of this Agreement is declared invalid by any arbitration
or court of competent jurisdiction, then such provision shall be deemed
automatically adjusted to the minimum extent necessary to conform to the
requirements for validity as declared at such time and, as so adjusted,
shall be deemed a provision of this Agreement as though originally included
herein. In the event that the provision invalidated is of such a nature
that it cannot be so adjusted, the provision shall be deemed deleted from
this Agreement as though such provision had never been included herein.
In either case, the remaining provisions of this Agreement shall remain
in effect.
19. EXCUSABLE DELAYS.
Neither party shall be liable for any delay or failure in its performance
under this Agreement if and to the extent that such delay or failure is
caused by events beyond the reasonable control of the party including,
without limitation, acts of God or public enemies, labor disputes, equipment
malfunctions, computer downtime, software defects, material or component
shortages, supplier failures, embargoes, rationing, acts of local, state or
national governments or public agencies, utility or communication failures
or delays, fire earthquakes, flood, epidemics, riots and strikes. If a
party becomes aware that such an event is likely to delay or prevent
punctual performance of itsown obligations, the party will promptly notify
the other party and use all reasonable efforts to avoid or remove such
causes of nonperformance and to complete performance whenever such causes
are removed.
20. GOVERNING LAW.
This Agreement will be governed for all purposes by the internal substantive
laws of the State of California, which are intended to supersede any choice
of laws rules which might otherwise be applicable. Both parties hereby
consent to the jurisdiction of the courts of the State of California,
whether federal, state or local with respect to actions brought to
enforce or interpret this Agreement.
21. NOTICES.
All notices, requests and other communications hereunder shall be in
writing and shall be acknowledged at the time of receipt if delivered by
hand or communicated by electronic transmission, or, if mailed, three (3)
days after mailing registered or certified mail, return receipt requested,
with postage prepaid, to the address for the receiving party set forth on
Page 1 as such may be changed by notice to the other given as provided
above, then to the last address so designated.
22. COMPLETE AGREEMENT.
This Agreement sets forth the entire understanding of Reseller and Experian
with respect to the subject matter hereof and supersedes all letters of
intent, agreements, covenants, arrangements, communications, representations
or warranties, whether oral or written, by an officer, employee, or
representative of either party relating thereto. This Agreement may be
amended at any time by a written agreement which refers expressly to this
Agreement and which is signed by both parties.
[Signatures follow]
IN WITNESS WHEREOF, Experian and Reseller have executed this Agreement.
Experian Information Solutions, Inc.
By and through its
Information Solutions Division
-------------------------------- ------------------------------------
Signature Signature
-------------------------------- ------------------------------------
Printed Name Printed Name
-------------------------------- ------------------------------------
Title Title
-------------------------------- ------------------------------------
Date Date
Experian Information Solutions, Inc.
By and through its
Information Solutions Division
------------------------------------
Signature
------------------------------------
Printed Name
Experian Contract Manager
------------------------------------
Title
------------------------------------
Date
EXHIBIT A
Item No. 1: Definition of Customer and Territory
Worldwide
Item No. 2: Frequency of Usage
Reseller is licensed to resell the Services to its Customers provided such
Customers shall be restricted to using the Service, and certifying such
usage, as follows:
___[***]___ [***] time usage
___[***]__ [***] time usage
____[***]_ Unlimited usage for [***] after Customer's date of receipt of
any of the Services.
Item No. 3: Services
Experian agrees to license to Reseller the following Services on the terms
and conditions set forth in the Agreement.
Experian will provide to Reseller, in the agreed upon media, an extract of
[***] as defined in [***].
Experian will provide [***] on a [***] basis.
Item No. 4: Fees and Payments
Reseller agrees to pay Experian for the Services, which shall include payment
according to the following schedule:
See Exhibit C
[***] Confidential treatment requested.
EXHIBIT B
BMS National Business Database
File Reference
December 1998
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] Confidential treatment requested.
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] [***] [***] [***] [***]
[***] Confidential treatment requested.
EXHIBIT C
Pricing
The pricing noted below is contingent upon the following conditions:
1) Contribution of Data by Reseller to Experian. If data contribution not
made, then Experian can re-negotiate the pricing.
2) Prices per Thousand except where noted
One Time Use of Data Bus. Mktg. Discount Risk
Aggregate Annual Revenue Database vs. Retail Reducer
------------------------------------------------------------------------
[***] commitment [***] [***] [***]
[***] commitment [***] [***] [***]
[***] commitment [***] [***] [***]
Unlimited Use of Data Bus. Mktg. Discount Risk
Aggregate Annual Revenue Database vs. Retail Reducer
------------------------------------------------------------------------
[***] commitment [***] [***] [***]
[***] commitment [***] [***] [***]
[***] commitment [***] [***] [***]
Selects Extract
-----------------------
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] [***]
[***] Confidential treatment requested.
EXHIBIT D
CUSTOMER USE CERTIFICATION
This Use Certification is executed as of the date set forth below by the
undersigned customer (hereinafter referred to as "Customer") for the benefit
of MySoftware Company (hereinafter referred to as "Reseller") and Experian
Information Solutions, Inc., Business Information Services Division
(hereinafter referred to as "Experian").
In consideration for Customer's right to receive and use certain data and
services from Reseller and Experian, Customer understands and certifies that
the data and services obtained from Experian through Reseller:
(i) will not be used as a factor in establishing an individual's
eligibility for (a) credit or insurance to be used primarily for
personal, family or household purposes, or (b) employment;
(ii) will be used in compliance with all applicable laws, regulations
and ordinances, and all special use restrictions set forth in the
Agreement or adopted by Experian and/or Reseller hereafter; and
(iii) will be maintained in confidence and disclosed only to persons
whose duties reasonably relate to the business purposes for which
the information was requested.
Customer further acknowledges and agrees that the data and services:
(i) are not guaranteed and that neither the Reseller, Experian nor their
sources will be liable to the Customer for any loss or damage based
on any errors or omissions there from;
(ii) are subject to the following exclusion of warranty. RESELLER,
EXPERIAN AND THEIR SOURCES DO NOT GUARANTEE OR WARRANT THE ACCURACY,
COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE SERVICES, DATA OR THE MEDIA ON WHICH
THE DATA IS PROVIDED AND SHALL NOT BE LIABLE TO CUSTOMER FOR ANY
LOSS OR INJURY ARISING OUT OF OR CAUSED IN WHOLE OR IN PART BY
RESELLER'S, EXPERIAN'S OR THEIR SOURCES' ACTS OR OMISSIONS,
WHETHER NEGLIGENT OR OTHERWISE, IN PROCURING, COMPILING,
COLLECTING, INTERPRETING, REPORTING, COMMUNICATING OR
DELIVERING THE DATA OR SERVICES. IN NO EVENT SHALL RESELLER,
EXPERIAN OR THEIR SOURCES BE LIABLE TO CUSTOMER OR ANY THIRD
PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL
DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS
REPUTATION, LOST BUSINESS OR LOST PROFITS), WHETHER FORESEEABLE
OR NOT AND HOWEVER CAUSED, EVEN IF RESELLER, EXPERIAN OR THEIR
SOURCES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS
PARAGRAPH STATES RESELLER'S, EXPERIAN'S AND THEIR SOURCES'
ENTIRE LIABILITY AND THE SOLE REMEDY OF CUSTOMER IN CONNECTION
WITH THE PROVISION OF THE DATA AND SERVICES.
(iii) IF, NOTWITHSTANDING THE PRIOR PARAGRAPH, LIABILITY CAN BE IMPOSED
ON RESELLER, EXPERIAN OR THEIR SOURCES, THEN CUSTOMER AGREES
THAT THE AGGREGATE LIABILITY FOR ANY OR ALL LOSSES OR INJURIES TO
CUSTOMER ARISING OUT OF ANY ACTS OR OMISSIONS OF RESELLER,
EXPERIAN OR THEIR SOURCES IN CONNECTION WITH ANYTHING TO BE
DONE OR FURNISHED UNDER THE AGREEMENT, REGARDLESS OF THE
CAUSE OR THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND
REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT
CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE AMOUNT
PAID TO RESELLER FOR THE DATA FURNISHED UNDER THE APPLICABLE JOB
SPECIFICATION AND CUSTOMER COVENANTS AND PROMISES THAT IT WILL
NOT XXX RESELLER, EXPERIAN OR THEIR SOURCES FOR AN AMOUNT
GREATER THAT SUCH SUM AND THAT IT WILL NOT SEEK PUNITIVE
DAMAGES IN ANY SUIT AGAINST RESELLER, EXPERIAN OR THEIR SOURCES.
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Name of Customer
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Signature
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Print Name
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Title
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Date
