EXHIBIT 10.4
JOINT MARKETING AGREEMENT
THIS JOINT MARKETING AGREEMENT ("Agreement"), effective as of the 19th day
of March, 2003, between DealerTrack Holdings, Inc., a Delaware corporation
("Parent"). DealerTrack, Inc., a Delaware corporation ("DT"), Credit Online,
Inc., a Delaware corporation ("COL"), and First American CREDCO, a division of
First American Real Estate Solutions LLC, a California limited liability company
("CREDCO").
RECITALS
A. CREDCO obtains credit and other information regarding consumers from
one or more of the national credit database repositories (each a "Repository"
and, collectively, the "Repositories") and uses such information to produce an
integrated credit report and/or a single Repository credit report (together with
credit scores and other enhancements that CREDCO may offer from time to time in
accordance with the terms of this Agreement, as well as various formats of such
reports intended for use by end-users, including eye-readable and raw data and
the CREDCO credit report known as "CreditMaster", the "Instant Merge Report")
for sale to end-users with a permissible purpose for such report. Such reports
are generated and produced by CREDCO's host system known as Instant Merge
("Instant Merge"). In addition, CREDCO enables end-users to obtain credit
reports directly from the Repositories using CREDCO subscriber codes and/or
directly provides end-users credit and other information regarding consumers
from one or more Repositories (together with credit scores and other
enhancements that CREDCO and/or the Repositories may offer from time to time, as
well as various formats of such reports intended for use by end-users, including
eye-readable and raw data, "CREDCO Credit Reports; CREDCO Credit Reports,
together with Instant Merge Reports, "CREDCO Products").
B. Parent, through its controlled Affiliates, including DT and COL (the
controlled Affiliates of Parent, including DT and COL, the "DealerTrack
Companies") enable business-to-business transactions to dealers ("Dealers") of
passenger vehicles, light trucks, snowmobiles, recreational vehicles,
motorcycles, boats and other watercraft and/or commercial vehicles
("Automobiles") through an electronic network or networks (such network or
networks, including any DealerTrack Web Product (as defined below), the
"DealerTrack Network") which, among other things, enables (a) Dealers to
transmit credit applications to financial institutions and other financing
sources ("Lenders"), (b) Lenders to receive such credit applications transmitted
by Dealers, (c) Dealers to receive credit decisions from Lenders with respect to
such credit applications, (d) Dealers to receive credit bureau reports from
Repositories, credit bureau report resellers, sales agents, marketing
representatives and other sellers and providers of credit bureau reports
("Credit Bureau Report Providers") and (e) do any of the foregoing through
various user interfaces, including, without limitation, the browser-based
product, known as XxxxxxXxxxx.xxx (the "DealerTrack Web Product"). Dealers which
subscribe to or use the DealerTrack Network are referred to herein as
"Customers".
C. The parties desire CREDCO to offer, and the DealerTrack Companies that
offer credit bureau reports through the DealerTrack Network to promote, make
available and distribute CREDCO Products to Customers which are approved to
receive CREDCO Products in accordance with this Agreement. Such Customers will
access CREDCO Products through the DealerTrack Network.
NOW THEREFORE, CREDCO, Parent (only for the purposes of Sections 7.2, 9
and 10), DT and COL agree as follows:
SECTION 1.
DISTRIBUTION; SALES AND MARKETING
1.1 Appointment. Subject to the terms and conditions of this Agreement,
CREDCO hereby appoints the DealerTrack Companies as non-exclusive marketing
representatives and distributors of CREDCO Products to Customers and potential
Customers. The DealerTrack Companies hereby accept such appointment. The
DealerTrack Companies hereby acknowledge and agree that such appointment is
non-exclusive and that, any provision of this Agreement notwithstanding, CREDCO
reserves the right to appoint other marketing representatives and distributors
of CREDCO Products to any person or entity and that CREDCO reserves the right to
distribute CREDCO Products directly to any person or entity.
1-2 Exclusive Marketing Representative.
(a) The DealerTrack Companies that offer credit bureau reports through the
DealerTrack Network will not promote, offer, market or sell credit bureau report
products of any other Credit Bureau Report Provider and will not themselves
become a Credit Bureau Report Provider except in connection with the Existing
Arrangements (as defined below). For purposes of clarity, nothing contained in
this Agreement shall be construed to limit, restrict or otherwise hinder any
DealerTrack Company's ability to allow a Dealer (as defined below) to access a
credit bureau report through the DealerTrack Network from a Credit Bureau Report
Provider using any bureau subscriber code. For purposes of this Agreement,
"Existing Arrangements" means (i) the Strategic Business, Marketing and License
Agreement, dated January 30, 2003, by and among DT, COL, ADP Canada Co. and ADP,
Inc. (ADP Canada Co. and ADP, Inc., collectively "ADP") (together with Permitted
Amendments, if any, the "ADP Agreement"); (ii) the Strategic Business, Marketing
and License Agreement, dated January 30, 2003, by and among DT, COL and The
Xxxxxxxx and Xxxxxxxx Company ("R+R") (together with Permitted Amendments, if
any, the "R+R Agreement"); (iii) the Reseller Services Agreement, [undated], by
and between XxxxxxXxxxx.xxx, Inc. and Experian Information Solutions, Inc. (the
"Experian Agreement"); (iv) the Distribution Agreement, dated April 1, 2002, by
and between DT and Equifax Information Services LLC; (v) the Network Processing
Agreement, dated April 15, 2002, by and between DT and Trans Union LLC and (vi)
any Permitted Amendment (as defined below).
(b) In the event a DealerTrack Company amends or modifies the R+R
Agreement the consequence of which is that such DealerTrack Company engages in
or is required to engage in Excluded Activity, then such DealerTrack Company
shall pay CREDCO the amount of net revenue it derives from such Excluded
Activity for so long as such amendment or modification remains in effect.
(c) In the event a DealerTrack Company amends or modifies the ADP
Agreement the consequence of which is that such DealerTrack Company engages in
or is required to engage in Excluded Activity, then such DealerTrack Company
shall pay CREDCO the amount of net revenue it derives from such Excluded
Activity for so long as such amendment or modification remains in effect.
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(d) For purposes of this Section 1.2:
"Excluded Activity" means being a Credit Bureau Report Provider and/or
selling credit bureau reports of any other Credit Bureau Report Provider.
"Permitted Amendment" shall mean any modification, amendment or extension
of (i) the ADP Agreement or the R+R Agreement or (ii) any Repository Agreement
permitted by Section 1.2(e).
"Repository Agreements" means the agreements listed in subparagraphs
(iii), (iv) and (v) in Section 1.2(a), above.
(e) Any DealerTrack Company may amend, modify or extend the Repository
Agreements, provided that such amendments, modifications or extensions do not,
without the prior written consent of CREDCO, (i) extend the term of any such
Repository Agreement, except solely to the extent necessary to meet any
DealerTrack Company's obligations under the ADP Agreement, the R+R Agreement or
this Agreement, or (ii) have an adverse impact on CREDCO's rights under this
Agreement. With respect to the Experian Agreement, any failure by DealerTrack to
give notice of non-renewal by DealerTrack within one year of the date of this
Agreement shall be considered an "extension" of the Experian Agreement for the
purposes of this Section 1.2(e).
(f) DealerTrack agrees to provide sufficient and timely notice to the
parties to the Repository Agreements in the event of DealerTrack's termination
of such Repository Agreements.
(g) DT and CREDCO shall work together after the execution of this
Agreement to ensure that each party to this Agreement understands the provisions
of the Existing Arrangements which act as restrictions, limitations or
exceptions to any provisions of this Agreement.
1.3 Non-Exclusive Distributorship. For the avoidance of doubt, nothing in
Section 1.2 shall preclude the DealerTrack Companies from distributing to
Customers through the DealerTrack Network credit reports provided by the
Repositories, ADP or R+R, provided that in the course of distributing such
credit reports no DealerTrack Company promotes, offers or markets credit bureau
reports other than CREDCO Products, except as permitted under Section 1.2.
1.4 CREDCO Acknowledgements. CREDCO acknowledges that DT and COL have
entered into an agreement with ADP, and that pursuant to such agreement, DT has
agreed not to and has agreed to cause COL not to promote, offer, market or sell
credit reports, including CREDCO Products, to Customers which use ADP's dealer
management system (each such Customer, an "ADP DMS Dealer"). CREDCO further
acknowledges that DT and COL have entered into an agreement with R+R, and that
pursuant to such agreement, DT has agreed not to and has agreed to cause COL not
to promote, offer, market or sell credit reports, including CREDCO Products, to
Customers which use R+R's dealer management system (each such Customer, an "R+R
DMS Dealer").
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1.5 Assignment of DealerTrack Credit Bureau Customers. The DealerTrack
Companies hereby sell, assign, transfer and deliver to CREDCO those rights and
obligations arising or accruing from and after the date hereof that the
DealerTrack Companies have with respect to the provision of credit bureau
reports to Customers other than a Customer which is an ADP DMS Dealer and/or R+R
DMS Dealer (the "Assigned DT Bureau Customers"); provided, however, that the
DealerTrack Companies transfer no right, including the right to receive payment,
in connection with products sold or services performed prior to the date hereof
(an "Excluded DT Assigned Right"); provided, further, the DealerTrack Companies
transfer no obligations, including the obligation to make payment or indemnify
any person or entity, in connection with products sold or services performed
prior to the date hereof (the "Excluded DT Assigned Liabilities"). In the event
CREDCO receives payment in connection with an Excluded DT Assigned Right, CREDCO
shall as soon as practicable following the receipt of such payment and in no
event later than 30 days following receipt of such payment, transfer such
payment to the DealerTrack Company entitled to receipt of such payment. CREDCO
hereby assumes all liabilities and obligations, other than Excluded DT Assigned
Liabilities, with respect to the Assigned DT Bureau Customers. The DealerTrack
Companies, on the one hand, and CREDCO, on the other hand, acknowledge and agree
that credit bureau reports will continue to be delivered to the Customer through
the DealerTrack Network. In the event that the relevant agreement between a
DealerTrack Company and the Customer does not permit such DealerTrack Company to
sell, assign, transfer and/or deliver its rights and/or obligations to CREDCO
with respect to the provision of credit bureau reports (the "Subcontracted DT
Bureau Customers"), such DealerTrack Company hereby subcontracts its obligations
under such contracts (other than contracts with a Customer that is an ADP DMS
Dealer and/or an R+R DMS Dealer) to CREDCO, excluding obligations (including
obligations to make payment or indemnify any person or entity) in connection
with products sold or services performed prior to the date hereof ("Excluded DT
Subcontracted Liabilities"), in consideration for which the DealerTrack Company
shall subcontract to CREDCO the right to collect and keep all amounts payable
any DealerTrack Company under such contracts and, if necessary, agrees to
prosecute any rights thereunder at CREDCO's direction and expense; provided,
however, that no DealerTrack Company shall be required to subcontract the right
to collect and keep payments for products sold or services performed prior to
the date hereof ("Excluded DT Subcontracted Right"). In the event CREDCO
collects payment in connection with an Excluded DT Subcontracted Right, CREDCO
shall as soon as practicable following the receipt of such payment and in no
event later than 30 days following receipt of such payment, transfer such
payment to the DealerTrack Company entitled to receipt of such payment. As
between CREDCO and the DealerTrack Companies, CREDCO shall have the right to
sign Assigned DT Bureau Customers and Subcontracted DT Bureau Customers to new
contracts, as well as assign such Customers CREDCO subscriber codes. The
DealerTrack Companies and CREDCO will work together to facilitate the transfer
of the Customer relationship to CREDCO and the payment of any amounts due CREDCO
in connection with the assignments and subcontracts described above in this
Section 1.5.
1.6 Assignment or Subcontracting of COL Credit Bureau Customers.
(a) COL hereby sells, assigns, transfers and delivers to CREDCO those
rights and obligations arising or accruing from and after the date hereof that
COL has with respect to the provision of credit bureau reports to Customers of
COL (the "Assigned COL Bureau Customers"); provided, however, that COL transfers
no right, including the right to receive payment, in connection with products
sold or services performed prior to the date hereof (an "Excluded COL Assigned
Right"); provided, further, that COL transfers no obligations, including the
obligation to make payment or
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indemnify any person or entity, in connection with products sold or services
performed prior to the date hereof (the "Excluded COL Assigned Liabilities"). In
the event CREDCO receives payment in connection with an Excluded COL Assigned
Right, CREDCO shall as soon as practicable following the receipt of such payment
and in no event later than 30 days following receipt of such payment, transfer
such payment to COL. CREDCO hereby assumes all liabilities and obligations,
other than Excluded COL Assigned Liabilities, with respect to the Assigned COL
Bureau Customers. COL, on the one hand, and CREDCO, on the other hand,
acknowledge and agree that credit bureau reports will continue to be delivered
to COL's customers through the DealerTrack Network. In the event that the
relevant agreement between COL and COL's customer does not permit COL to sell,
assign, transfer and/or deliver its rights and/or obligations to CREDCO with
respect to the provision of credit bureau reports (the "Subcontracted COL Bureau
Customers"), COL hereby subcontracts its obligations under such contracts to
CREDCO, excluding obligations (including obligations to make payment or
indemnify any person or entity) in connection with products sold or services
performed prior to the date hereof ("Excluded COL Subcontracted Liabilities",
together with Excluded DT Assigned Liabilities, Excluded DT Subcontracted
Liabilities and Excluded COL Assigned Liabilities, the "Excluded Liabilities"),
in consideration for which COL shall subcontract to CREDCO the right to collect
and keep all amounts payable COL under such contracts and, if necessary, agrees
to prosecute any rights thereunder at CREDCO's direction and expense; provided,
however, that (i) COL shall not be required to subcontract the right to collect
and keep payments for products sold or services performed prior to the date
hereof ("Excluded COL Subcontracted Right"), and (ii) in the event COL collects
any amounts payable for products sold or services performed prior to the date
hereof under such contracts, COL shall pay CREDCO such amounts. In the event
CREDCO collects payment in connection with an Excluded COL Subcontracted Right,
CREDCO shall as soon as practicable following the receipt of such payment and in
no event later than 30 days following receipt of such payment, transfer such
payment to COL. As between CREDCO and the DealerTrack Companies, CREDCO shall
have the right to sign Assigned COL Bureau Customers and Subcontracted COL
Bureau Customers to new contracts, as well as assign such Customers with CREDCO
subscriber codes. The DealerTrack Companies and CREDCO will work together to
facilitate the transfer of the Customer relationship to CREDCO and the payment
of any amounts due CREDCO in connection with the assignments and subcontracts
described above in this Section 1.6.
(b) With respect to Assigned COL Bureau Customers and Subcontracted COL
Bureau Customers which are also ADP DMS Dealers, COL hereby assigns and CREDCO
hereby assumes, COL's obligation to ADP under Section 3.5 of that certain
Strategic Business, Marketing and License Agreement, dated October 1, 2001, by
and between COL, First American Credit Management Solutions, Inc. ("CMSI") and
ADP for CREDCO Products sold to ADP DMS Dealers after the date hereof.
(c) With respect to Assigned COL Bureau Customers and Subcontracted COL
Bureau Customers which are also R+R DMS Dealers, COL hereby assigns and CREDCO
hereby assumes, COL's obligation to R+R under Section 3.5(a) of that certain
Strategic Business, Marketing and License Agreement, dated October 1, 2001, by
and COL, CMSI and R+R for CREDCO Products sold to R+R DMS Dealers after the date
hereof.
1.7 Availability. Subject to Section 5.5, the DealerTrack Companies will
make CREDCO Products (including, without limitation, any enhancements and
modifications) available through the
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DealerTrack Network, to the extent that the DealerTrack Network offers or makes
available credit bureau products.
SECTION 2.
CUSTOMER SET UP
2.1 Direct Relationship with CREDCO Required. In order to receive CREDCO
Products through the DealerTrack Network, a Customer must have a direct
contractual relationship with CREDCO, and CREDCO must approve the Customer for
such service after completion of the account set-up process described in this
Section 2 and, in connection therewith, CREDCO may require a security deposit
from such Customer. For purposes of this Agreement, Customers who are approved
by CREDCO for access to CREDCO Products through the DealerTrack Network are
referred to as "DealerTrack Participating Customers". CREDCO will obtain, or in
the event a DealerTrack Company agrees to participate in the account set-up
process, such DealerTrack Company will obtain executed CREDCO account set-up
documentation from a proposed DealerTrack Participating Customer, including
CREDCO's Agreement for Service, which shall be in a form specified by CREDCO and
which will include the dealer management system used by the Customer, other
applicable addenda, and any other documents required by CREDCO from time to time
(together, "Customer Documents"). In the event that a DealerTrack Company
obtains the Customer Documents, such DealerTrack Company will deliver the
originals to CREDCO for its prior review and approval. The DealerTrack Companies
acknowledge and agree that CREDCO's approval guidelines may change from time to
time. The DealerTrack Companies agree to use commercially reasonable efforts to
provide such functionality on the DealerTrack Network which would enable a
Customer or potential Customer to complete the enrollment process for CREDCO
Products through the DealerTrack Network.
2.2 Physical Inspection. A physical inspection of each proposed
DealerTrack Participating Customer will be required if not already on file with
CREDCO and the inspection form must be completed and returned to CREDCO as part
of the set-up process. CREDCO uses a third party to conduct such physical
inspections, and, subject to the next sentence, CREDCO may charge DealerTrack
Participating Customers a one-time fee ("Inspection Fee") for such inspections.
In the event a DealerTrack Company desires to conduct such physical inspections
itself, it may do so with CREDCO's prior written permission (which will not be
unreasonably withheld), and in such circumstances, CREDCO will not impose any
Inspection Fee on such DealerTrack Participating Customer. If a DealerTrack
Company, or a representative of a Lender that participates in the DealerTrack
Network as an independent contractor of a DealerTrack Company, conducts the
physical inspection contemplated by this Section 2.2, such DealerTrack Company
may charge the DealerTrack Participating Customer a fee equal to CREDCO's
then-prevailing rate.
2.3 Customer Approval. Upon receipt of Customer Documents and the
inspection form relating to a prospective DealerTrack Participating Customer,
CREDCO will review the information provided to ensure that the applicant meets
its requirements for the receipt of CREDCO Products through the DealerTrack
Network. After approval of the Customer as a DealerTrack Participating Customer,
CREDCO will issue access codes to the DealerTrack Participating Customer and/or
a DealerTrack Company, as necessary. CREDCO reserves the right to deny
DealerTrack Participating Customer status to any Customer or revoke such status
in its reasonable discretion. CREDCO will use commercially reasonable efforts to
provide the appropriate DealerTrack Company with prior notice
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before taking any such action, unless immediate action is required, in which
event CREDCO will provide such notice as soon as reasonably practicable.
SECTION 3
DELIVERY OF CREDCO PRODUCTS
3.1 Order Process.
(a) DealerTrack Participating Customers using a CREDCO host
subscriber code will transmit orders for CREDCO Products to the DealerTrack
Network, and the DealerTrack Companies will transmit these orders, together with
all identification information reasonably required by CREDCO solely to process
the order, to CREDCO via a secure lease line ("Lease Line"). CREDCO will fulfill
the order and transmit the applicable CREDCO Product to the DealerTrack Network
through the Lease Line.
(b) DealerTrack Participating Customers using a CREDCO Repository
subscriber code will transmit orders for CREDCO Credit Reports directly to the
applicable Repository using such technology as is reasonably required by such
Repository, which technology will be provided by the DealerTrack Companies using
commercially reasonable efforts and otherwise to the extent provided for in any
agreement or understanding between a DealerTrack Company and a Repository.
(c) The DealerTrack Companies will post the CREDCO Product received
from CREDCO and/or the Repository to a secure location on the DealerTrack
Network that is accessible by the DealerTrack Participating Customer who ordered
the report and its Affiliates, which may access the applicable CREDCO Product
through the DealerTrack Web Product or any other CREDCO-approved interface of
the DealerTrack Companies.
3.2 Network Requirements. The DealerTrack Companies that offer credit
bureau reports through the DealerTrack Network will use commercially reasonable
efforts to enable DealerTrack Participating Customers to access CREDCO Products
through the DealerTrack Network, and CREDCO will provide reasonable technical
assistance required by the DealerTrack Companies in connection with such
modifications. For purposes of clarity, COL shall have no obligation to enable
such access to the CREDCO Products after any date on which COL has ceased to
offer credit bureau reports through the DealerTrack Network. The DealerTrack
Companies will provide to CREDCO a description of their current security
features and policies implemented to prevent unauthorized access of CREDCO
Products through the DealerTrack Network, including all relevant security
certificates. The DealerTrack Companies will not materially decrease the level
of security currently offered by the DealerTrack Companies without CREDCO's
prior written consent, which consent will not be unreasonably withheld,
conditioned or delayed. The DealerTrack Companies agree that (a) CREDCO Products
will be posted on the DealerTrack Network in the form reasonably specified by
CREDCO and reasonably approved by the DealerTrack Companies subject to any
changes reasonably requested by the DealerTrack Companies from time to time and
reasonably approved by CREDCO, (b) they will not store, archive, copy or
otherwise retain CREDCO Products or any information therein for any period in
excess of the time period that CREDCO must adhere to under its agreements with
the Repositories and any other applicable requirement, which is currently seven
(7) days, and (c) they will not transfer, disseminate, provide, or otherwise
disclose or use any CREDCO Product or information contained therein for any
purpose, except to provide access to such report to the DealerTrack
Participating Customer who ordered
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it and/or its Affiliates, and/or to otherwise carry out its obligations under
this Agreement. The DealerTrack Companies further agree, at their own expense,
to modify, enhance, or improve the DealerTrack Network to conform to technical
requirements to which the DealerTrack Companies and CREDCO may mutually agree to
from time to time. CREDCO agrees, at its own expense, to modify, enhance, or
improve all CREDCO Product-related systems and networks ("CREDCO Systems") to
conform to technical requirements which the DealerTrack Companies and CREDCO may
mutually agree to from time to time. Each party shall be responsible, at its own
expense, for maintaining the security of all systems and networks related to
such party's performance of its obligations under this Agreement.
3.3 Report Format; Maintenance of Copies. With respect to those CREDCO
Products originating from the CREDCO host system (and not, for the avoidance of
doubt, directly from one or more of the Repositories) (i) CREDCO will provide
CREDCO Products to the DealerTrack Companies in the same consistent formats as
CREDCO provides to its other Automobile clients, unless the parties mutually
agree to the contrary, and (ii) CREDCO may vary such format from time to time
upon 180 days notice to the DealerTrack Companies. Subject to Section 3.2(b), in
the event a DealerTrack Company receives a CREDCO Product in raw data format,
the DealerTrack Companies agree to keep a copy of such CREDCO Product in the
original raw data format in which it received such CREDCO Product from CREDCO or
one of the Repositories for a period not to exceed the period set forth in
Section 3.2(b) above.
3.4 Regulatory Requirements. In order to receive CREDCO Products, each
DealerTrack Participating Customer must have and continue to have, a permissible
purpose under the Fair Credit Reporting Act, 15 USC Section 1681 et seq
("FCRA"). CREDCO agrees that its marketing and other communications to
prospective and actual DealerTrack Participating Customers will accurately
reflect these requirements. To the extent that a DealerTrack Company distributes
marketing or other communications to prospective and actual DealerTrack
Participating Customers, such material and communications will reflect these
requirements. CREDCO represents, warrants and covenants to the DealerTrack
Companies, and each DealerTrack Company represents, warrants and covenants to
CREDCO that its performance of this Agreement will at all times comply with the
FCRA and all other applicable federal and state laws. CREDCO and each
DealerTrack Company shall be responsible for its own compliance with all laws
affecting its performance of this Agreement.
3.5 Right to Terminate or Suspend Access. CREDCO reserves the right to
suspend or terminate any DealerTrack Participating Customer's access to CREDCO
Products as provided in the appropriate Customer Documents. The DealerTrack
Companies reserve the right to suspend or terminate any DealerTrack
Participating Customer's access to the DealerTrack Network as provided in the
agreement or agreements or terms of use with respect thereto. CREDCO, on the one
hand, and the DealerTrack Companies, on the other hand, agree to use
commercially reasonable efforts to provide each other with notice before taking
any such action unless prompt action is required, in which case such notice
shall be provided as soon as reasonably possible.
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SECTION 4.
MARKETING ACTIVITIES
4.1 General. Subject to any restrictions, limitations or contrary
obligations of any DealerTrack Company under any Existing Arrangements, the
DealerTrack Companies that offer credit bureau reports through the DealerTrack
Network will use good faith efforts, at their own expense, to promote, market
and offer CREDCO Products to Customers which are not ADP DMS Dealers or R+R DMS
Dealers, except to the extent ADP or R+R, respectively, permits the DealerTrack
Companies to so promote, market and offer CREDCO Products to ADP DMS Dealers or
R+R DMS Dealers, respectively. CREDCO will cooperate with the DealerTrack
Companies in promoting, marketing and offering CREDCO Products and will provide
reasonable marketing, technical assistance and training, at CREDCO's own expense
to the DealerTrack Companies' personnel to ensure that the features and benefits
of CREDCO Products are understood.
4.2 Promotional and User Materials. CREDCO will provide reasonable
assistance to the DealerTrack Companies in developing and producing material
promoting CREDCO Products, including providing materials that the DealerTrack
Companies may use to develop a user manual. If a DealerTrack Company desires to
use CREDCO marketing materials, and CREDCO desires to provide such materials,
CREDCO will provide such materials at no cost to such DealerTrack Company.
4.3 Name Usage. No DealerTrack Company will publish, distribute, or
otherwise release any written materials mentioning CREDCO by name or concerning
CREDCO Products (other than materials prepared by CREDCO) to prospective or
actual DealerTrack Participating Customers without CREDCO's prior written
approval, which approval will not be unreasonably withheld or delayed; provided,
however, that any DealerTrack Company shall have the ability to mention in
promotional materials that CREDCO Products are available through the DealerTrack
Network. CREDCO will not publish, distribute, or otherwise release any written
materials mentioning any DealerTrack Company by name or concerning the
DealerTrack Network (other than materials prepared by a DealerTrack Company) to
prospective or actual DealerTrack Participating Customers without such
DealerTrack Company's prior written approval, which approval will not be
unreasonably withheld or delayed; provided, however, that CREDCO shall have the
ability to mention in promotional materials that CREDCO Products are available
on the DealerTrack Network. Notwithstanding the foregoing, each party shall have
the right to withdraw any approvals granted by it under this Section 4.3, and/or
the other party's ability to mention its name under this Section, as reasonably
necessary to protect its goodwill, reputation and trademark rights.
4.4 Reporting. The parties will mutually agree as to the type and content
of reporting under this Agreement and the frequency and method of the
distribution of such reports, and shall use commercially reasonable efforts to
provide the following reports in a commercially reasonable timeframe; (a)
monthly activity reports, and (b) periodic reports containing enough information
to enable CREDCO to identify each DealerTrack Participating Customer that has
either changed or added a non-CREDCO credit report subscriber number, account
number, access code or similar code from the DealerTrack Network and/or removed
or changed CREDCO's subscriber number, account number, access code or similar
code from the DealerTrack Network.
SECTION 5.
SUPPORT, SERVICE, AND LIAISON RESPONSIBILITIES
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5.1 DealerTrack Network; User Interfaces. The DealerTrack Companies are
solely responsible for all matters related to the design, maintenance, and
support of the DealerTrack Network, including functionality related to the
receipt of CREDCO Products from CREDCO, enabling DealerTrack Participating
Customers to manipulate CREDCO Products that they have ordered, security
procedures and all other related matters. CREDCO will provide a DealerTrack
Companies with technical assistance reasonably required by such DealerTrack
Company from time to time in order to enable such DealerTrack Company to
receive, and DealerTrack Participating Customers to access, CREDCO Products
through the DealerTrack Network. The DealerTrack Companies will provide
necessary support to assist CREDCO during normal business hours for requests
related to the receipt of CREDCO Products through the DealerTrack Network.
5.2 CREDCO Systems. CREDCO is solely responsible for all matters related
to the design, maintenance, and support of the CREDCO Systems, including
functionality relating to the transmission of CREDCO Products to the DealerTrack
Network, security procedures and all other related matters.
5.3. Report Content and Consumer Disputes. With respect to those CREDCO
Products originating from the CREDCO host system (and not, for the avoidance of
doubt, directly from one or more of the Repositories), all questions related to
the content of CREDCO Products, consumer disputes and inquiries regarding CREDCO
Products, and matters relating to the credit reporting laws will be the
responsibility of CREDCO. For such purpose, CREDCO personnel will be available
by telephone during normal business hours to assist (i) the DealerTrack
Companies in responding to requests from DealerTrack Participating Customers
regarding such matters and (ii) DealerTrack Participating Customers regarding
such matters.
5.4 Liaison. DealerTrack and CREDCO will each designate a project manager
and backup manager to provide liaison functions in connection with this
Agreement, as well as any other liaison personnel that the parties mutually
determine to be necessary or convenient. The project managers shall attempt to
meet at least once per quarter or with such frequency as DealerTrack and CREDCO
shall agree.
5.5 Enhancements; New Products and Services. If CREDCO desires to make any
enhancements or modifications to the CREDCO Products which would require any
change to the DealerTrack Network, CREDCO shall give the DealerTrack Companies
reasonable advance notice of such change and, if a DealerTrack Company would
incur any material costs, as determined by DealerTrack, in connection with such
enhancements or modifications, CREDCO, on the one hand, and the DealerTrack
Companies, on the other hand, shall mutually agree on a cost-sharing arrangement
prior to implementing such enhancements or modifications. If CREDCO desires to
offer any new products or services to Customers, CREDCO shall give the
DealerTrack Companies reasonable advance notice of such new products or services
and, if the parties mutually agree to implement such new products or services,
CREDCO, on the one hand, and the DealerTrack Companies, on the other hand, shall
negotiate in good faith on a revenue-sharing and cost-sharing arrangement with
respect to the delivery of such new products and services over the DealerTrack
Network.
SECTION 6
FEES AND CHARGES; MOST FAVORED NATIONS
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DealerTrack Joint Marketing Agreement
6.1 CREDCO Report Fees. CREDCO shall charge a DealerTrack Participating
Customer for each CREDCO Product ordered by the DealerTrack Participating
Customer and transmitted by CREDCO to the DealerTrack Participating Customer
through the DealerTrack Network in accordance with the terms of CREDCO's
then-current pricing list for such reports (the "CREDCO Report Fees"); provided,
however, that for a period of time, the length of which shall be determined by
CREDCO in its sole and unfettered discretion, Assigned DT Bureau Customers,
Subcontracted DT Bureau Customers, Assigned COL Bureau Customers and
Subcontracted COL Bureau Customers shall continue on their current pricing. A
copy of CREDCO's current pricing is attached as Exhibit B. CREDCO may change the
CREDCO Report Fees upon sixty (60) days prior written notice to DealerTrack. The
DealerTrack Companies agree that all marketing, promoting and offering of CREDCO
Products performed by a DealerTrack Company, if any, will reflect the
then-current CREDCO Report Fees, provided that CREDCO has provided the
DealerTrack Companies with reasonable advance notice of such fees. CREDCO will
update its marketing materials to reflect all current CREDCO Report Fees at all
times, and CREDCO will reimburse the DealerTrack Companies for any and all
expenses reasonably incurred by the DealerTrack Companies as a result of changes
in the CREDCO Report Fees. Any deviation in pricing offered by a DealerTrack
Company must be approved, in advance, and in writing by CREDCO.
6.2 Sales Taxes and State Surcharges. The CREDCO Report Fees do not
include applicable sales, use, and excise taxes (together, "Sales Taxes") or
special surcharges in states in which regulatory requirements materially
increase CREDCO's cost of providing CREDCO Reports with respect to consumers
with a past or present connection to such state ("State Surcharges"). CREDCO
shall invoice the applicable DealerTrack Participating Customers for any
applicable Sales Taxes and State Surcharges; provided, however, that if CREDCO
and a DealerTrack Company agrees that such DealerTrack Company shall be
responsible for invoicing the applicable DealerTrack Participating Customer for
any applicable Sales Taxes and State Surcharges, CREDCO will calculate the
amount of such Sales Taxes and State Surcharges with respect to each applicable
DealerTrack Participating Customer and shall provide such calculations to such
DealerTrack Company at the same time that necessary information is provided to
such DealerTrack Company under Section 6.5 and in no event later than 4 business
days after the end of each calendar month; provided, however, that if a
DealerTrack Company is responsible for invoicing the applicable DealerTrack
Participating Customer, CREDCO's obligation to calculate the amount of such
Sales Taxes and State Surcharges and provide such calculations to such
DealerTrack Company shall be dependent upon such DealerTrack Company providing
the Dealer and consumer location information, as applicable, necessary for such
calculation to CREDCO.
6.3 Inspection Fee. Subject to Section 2.2 and if otherwise applicable,
CREDCO shall charge DealerTrack Participating Customers the Inspection Fee to
cover the cost of the physical inspection. CREDCO's current Inspection Fee is
indicated on Exhibit C. and CREDCO may change such fee from time to time upon
reasonable, but no less than 60 calendar days, prior notice to DealerTrack.
6.4 DealerTrack Fees.
6.4.1 Fees. Subject to Section 6.4.2, with respect to each CREDCO Credit
Report or Instant Merge Report transmitted to a DealerTrack Participating
Customer through the DealerTrack Network, and provided the DealerTrack
Participating Customer uses the Instant Merge or other CREDCO account number and
password provided to it by CREDCO, CREDCO shall pay the applicable DealerTrack
Company:
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DealerTrack Joint Marketing Agreement
(a) If the DealerTrack Participating Customer (1) is an Assigned DT
Bureau Customer or a Subcontracted DT Bureau Customer, (2) is an Active CREDCO
Customer and (3) is not a Re-Contracted Customer: $0.405;
(b) If the DealerTrack Participating Customer (1) is an Assigned DT
Bureau Customer or a Subcontracted DT Bureau Customer, (2) is not an Active
CREDCO Customer and (3) is not a Re-Contracted Customer: $0.405;
(c) If the DealerTrack Participating Customer (1) is an Assigned DT
Bureau Customer or a Subcontracted DT Bureau Customer, (2) is an Active CREDCO
Customer, (3) is an Active DealerTrack Customer and (4) is a Re-Contracted
Customer: $0.405;
(d) If the DealerTrack Participating Customer (1) is an Assigned DT
Bureau Customer or a Subcontracted DT Bureau Customer, (2) is not an Active
CREDCO Customer, (3) is an Active DealerTrack Customer and (4) is a
Re-Contracted Customer: $0.405;
(e) If the DealerTrack Participating Customer (1) is an Assigned COL
Bureau Customer or a Subcontracted COL Bureau Customer, (2) is not an Assigned
DT Bureau Customer or a Subcontracted DT Bureau Customer and (3) is not an
Active CREDCO Customer: $0.405;
(f) If the DealerTrack Participating Customer (1) is an Assigned COL
Bureau Customer or a Subcontracted COL Bureau Customer, (2) is not an Assigned
DT Bureau Customer or a Subcontracted DT Bureau Customer, (3) is an Active
CREDCO Customer and (4) is either an ADP DMS Dealer or a R+R DMS Dealer: $0.405;
(g) If the DealerTrack Participating Customer (1) is an Assigned COL
Bureau Customer or a Subcontracted COL Bureau Customer, (2) is not an Assigned
DT Bureau Customer or a Subcontracted DT Bureau Customer, (3) is an Active
CREDCO Customer and (4) is not either an ADP DMS Dealer or a R+R DMS Dealer: the
applicable fees set forth on Exhibit D;
(h) If the DealerTrack Participating Customer (1) is not an Assigned
DT Bureau Customer, a Subcontracted DT Bureau Customer, an Assigned COL Bureau
Customer or a Subcontracted COL Bureau Customer and (2) is an ADP DMS Dealer:
$0.405;
(i) If the DealerTrack Participating Customer is (1) not an Assigned
DT Bureau Customer, a Subcontracted DT Bureau Customer, an Assigned COL Bureau
Customer or a Subcontracted COL Bureau Customer and (2) is a R+R DMS Dealer:
$0.405; and
(j) If the DealerTrack Participating Customer is (1) not an Assigned
DT Bureau Customer, a Subcontracted DT Bureau Customer, an Assigned COL Bureau
Customer or a Subcontracted COL Bureau Customer and (2) is not either an ADP DMS
Dealer or a R+R DMS Dealer: the applicable fees set forth on Exhibit D;
it being understood that the transmission of any one CREDCO Credit Report or
Instant Merge Report will fall into only one of the foregoing categories.
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DealerTrack Joint Marketing Agreement
For purposes of Section 6.4, the following words and phrases shall
have the following meanings:
"Active CREDCO Customer" means a dealer which has purchased at least one
CREDCO Credit Reports and/or Instant Merge Report (whether through R+R
(irrespective of the branding of any such report) or any of its Affiliates,
CREDCO or any of its Affiliates or otherwise) during the period between January
1, 2003 and February 4, 2003.
"Active DealerTrack Customer" means a dealer which has purchased at least
one credit bureau report using a DT subscriber code (other than COL) during the
period between January 1, 2003 and February 4, 2003.
"Re-Contracted Customer" means an Assigned DT Bureau Customer or a
Subcontracted DT Bureau Customer which is receiving CREDCO Credit Reports or
Instant Merge Reports pursuant to an agreement entered into between CREDCO and
such Customer after the date of this Agreement.
6.4.2 Maximum Payment; Adjustments.
(a) The total amount payable by CREDCO to all DealerTrack Companies
pursuant to Section 6.4.1 (i) shall not exceed $95,000 during the one-year
period beginning on the date on which integration between the DealerTrack
Network and the systems through which CREDCO delivers CREDCO Products is
complete and during each subsequent one-year period.
(b) The total amount payable by CREDCO to all DealerTrack Companies
pursuant to Section 6.4.1 (a) and Section 6.4.1 (c), collectively, shall not
exceed the sum of (i) the product of the applicable fee under Section 6.4.1 (a)
and the average number of credit bureau reports purchased from DT, or from the
Repositories using a DT subscriber code, by the Assigned DT Bureau Customers and
Subcontracted DT Bureau Customers described in Section 6.4.1 (a) for the full
three calendar months prior to the date of this Agreement and (ii) the product
of the applicable fee under Section 6.4.1 (c) and the average number of credit
bureau reports purchased from DT, or from the Repositories using a DT subscriber
code, by the Assigned DT Bureau Customers and Subcontracted DT Bureau Customers
described in Section 6.4.1 (c) for the full three calendar months prior to the
date of this Agreement.
(c) The total amount payable by CREDCO to all DealerTrack Companies
pursuant to Section 6.4.1 (f) and Section 6.4.1 (g), collectively, shall not
exceed the sum of (i) the product of the applicable fee under Section 6.4.1 (f)
and the average number of credit bureau reports purchased from COL, or from the
Repositories using a COL subscriber code, by the Assigned COL Bureau Customers
and Subcontracted COL Bureau Customers described in Section 6.4.1 (f) for the
full three calendar months prior to the date of this Agreement and (ii) the
product of the applicable fee under Section 6.4.1 (g) and the average number of
credit bureau reports purchased from COL, or from the Repositories using a DT or
Parent subscriber code, by the Assigned COL Bureau Customers and Subcontracted
DT Bureau Customers described in Section 6.4.1 (g) for the full three calendar
months prior to the date of this Agreement.
(d) To the extent the amount payable by CREDCO to a DealerTrack Company in
Section 6.4.1 is determined by reference to Exhibit D, to the extent that CREDCO
modifies its CREDCO Report Fees, either generally or for specific DealerTrack
Participating Customers, a proportionate adjustment will be made in the amount
of the fee payable to such DealerTrack Company thereunder; provided.
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DealerTrack Joint Marketing Agreement
however, that for purposes of determining the amount of any such proportionate
adjustment any increase in the CREDCO Report Fees shall be determined by
subtracting any increase in the price charged CREDCO by the Repositories from
any increase in the applicable CREDCO Report Fee.
6.4.3 General. The fees payable by CREDCO to a DealerTrack Company
pursuant to Section 6.4.1 (collectively, the "DealerTrack Fees") will be
remitted to such DealerTrack Company within forty-five (45) days following the
end of each calendar month. DealerTrack Fees are payable only out of CREDCO
Report Fees actually collected from the applicable DealerTrack Participating
Customer. If CREDCO refunds or reverses a CREDCO Report Fee with respect to
which CREDCO has paid a DealerTrack Fee, CREDCO shall have the right to make
appropriate adjustments to subsequent DealerTrack Fees.
6.5 Billing and Collections. With respect to those DealerTrack
Participating Customers (including, without limitation, Assigned DT Bureau
Customers, Subcontracted DT Bureau Customers, Assigned COL Customers,
Subcontracted COL Bureau Customers) receiving (i) CREDCO Products from the
CREDCO host system or (ii) CREDCO Credit Reports from the Repositories using a
CREDCO subscriber code, CREDCO will be responsible for xxxxxxxx and collections
from such DealerTrack Participating Customers. Subject to the foregoing, the
parties agree to work together in good faith to determine the most efficient and
economic manner to provide for billing and collecting from DealerTrack
Participating Customers.
6.6 Lease Line Charges. DT will be responsible for all fees and charges
incurred in connection with the Lease Line.
6.7 Interface. The DealerTrack Companies, on the one hand, and CREDCO, on
the other hand, agree to use their respective commercially reasonable best
efforts to build all required interfaces between the DealerTrack Network and
CREDCO's systems with respect to the delivery of CREDCO Products. The
DealerTrack Companies, on the one hand, and CREDCO, on the other hand will be
responsible for their or its, respectively, own expenses related to building,
implementation, refinements and enhancements of their or its, respectively,
systems and services. The DealerTrack Companies, on the one hand, and CREDCO, on
the other hand further acknowledge and agree that the other shall retain all
rights to their or its, respectively, applications, technology, interfaces and
other intellectual property, including any derivative works and other
refinements and enhancements thereof.
6.8 CREDCO Interface Incentive. CREDCO agrees to pay DT twenty-five
thousand dollars ($25,000.00) if the completion, as approved and determined by
CREDCO, of the interface between the DealerTrack Network and the Instant Merge
system (and other CREDCO systems necessary for the delivery to Customers of
CREDCO Products) is completed within 75 days of the date of this Agreement.
6.9 Most Favored Nations.
(a) Features and Functionality of DealerTrack Systems. Except with
respect to the Existing Arrangements, and provided that CREDCO is not in breach
of this Agreement, the DealerTrack Companies agree that the aspect of the
DealerTrack Network through which Customers (1) sign-up, order and/or receive,
(2) have the opportunity to sign-up, order and/or receive, (3) view, (4)
manipulate, (5) analyze and (6) handle CREDCO Products shall have no fewer
features and no less functionality than that aspect of the DealerTrack Network
through which Customers perform such functions with
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DealerTrack Joint Marketing Agreement
respect to credit bureau reports and similar products originating from any other
person or entity (including any other Credit Bureau Report Provider) and
delivered through such systems or applications.
(b) Features and Functionality of the CREDCO System. CREDCO agrees
that the aspect of the CREDCO systems through which CREDCO distributes CREDCO
Products to DealerTrack Participating Customers shall have no fewer features and
no less functionality than that aspect of the CREDCO systems through which
CREDCO delivers CREDCO Products to or through other distributors.
2.1 (c) Price; Terms. Except with respect to R+R, ADP and each of their
respective Affiliates and excluding Sections 6.4.2(a), (b) and (c), CREDCO
agrees that it presently does not and in the future will not (i) pay any
distributor of CREDCO Products to automobile dealers with an average monthly
distribution volume (over the previous 6 fully completed calendar months) of
CREDCO Products that is within 3% of the average monthly volume (over the
previous 6 fully completed calendar months) of CREDCO Products distributed
collectively by the DealerTrack Companies a fee that is greater than the
applicable fee set forth in Section 6.4.1 (excluding the effects of Section
6.4.2(a), (b) and (c)) and/or (ii) grant any distributor of CREDCO Products to
Dealers with an average monthly distribution volume (over the previous 6 fully
completed calendar months) of CREDCO Products that is within 3% of the average
monthly volume (over the previous 6 fully completed calendar months) of CREDCO
Products distributed collectively by the DealerTrack Companies other terms that
are more favorable than the other terms granted to CREDCO in this Agreement.
(d) Preferred Placement. Subject to any preferences accorded to any
party in the Existing Arrangements, the DealerTrack Companies will give
preferred placement of CREDCO Products on the DealerTrack Web Product, as
determined by DealerTrack in its reasonable discretion.
(e) CREDCO Remedy. In addition to any remedies provided by
applicable law, if CREDCO, in its reasonable determination, believes that the
covenant set forth in Section 6.9(a) has been breached CREDCO and the relevant
DealerTrack Company shall use their respective commercially reasonable best
efforts to bring such DealerTrack Company into compliance.
(f) DealerTrack Remedy. In addition to any remedy provided by
applicable law, if DT, in its reasonable determination, believes that the
covenant set forth in Section 6.9(b) has been breached, CREDCO and the
DealerTrack Companies shall use their respective commercially reasonable best
efforts to bring CREDCO into compliance.
(g) MFN Audit Rights. During the term of this Agreement, and for a
period of one year thereafter, each of the DealerTrack Companies, on the one
hand, and CREDCO, on the other hand, shall have the right to audit the books and
records of CREDCO and the DealerTrack Companies, respectively, are relevant to
the DealerTrack Companies and CREDCO, respectively, enforcing its rights under
Section 6; provided, however, that all audits must be conducted by an
independent auditor selected by the party conducting the audit (the "Auditing
Party"), other than such party's usual independent auditors, at the Auditing
Party's expense. The Auditing Party's independent auditor shall have the right
upon no less than 30 days prior written notice to the other party (the "Audited
Party") to review, no more than once every twelve months, or within 60 days of
the Auditing Party's discovery of a material breach of this Section 6 by the
Audited Party, during normal business hours, at the offices of
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DealerTrack Joint Marketing Agreement
the Audited Party where such books and records are maintained and as reasonably
appropriate; provided, however, that such audit may not be carried out in a way
which would violate security policies which the Audited Party has undertaken to
comply with. The Audited Party shall cooperate with Auditing Party in all
reasonable respects regarding such audit.
SECTION 7
TERM AND TERMINATION
7.1 Term. Subject to Section 7.2, the initial term of this Agreement shall
commence on the date hereof and shall end on the 10 year anniversary of the date
hereof; provided, however, that the term shall automatically renew for
successive one year renewal terms unless DealerTrack or CREDCO gives the other
written notice of its election to terminate this Agreement at least one
hundred-eighty (180) days prior to the expiration of the then current term.
7.2 Termination for Cause. Parent, or any successor in interest, may
terminate this Agreement upon thirty (30) days' written notice to CREDCO if any
CREDCO breach of this Agreement remains uncured thirty (30) days after written
notice thereof to CREDCO. CREDCO may terminate this Agreement upon thirty (30)
days' written notice to Parent, DT and COL if any Parent, DT or COL breach of
this Agreement remains uncured thirty (30) days after written notice thereof to
Parent, DT and COL.
7.3 Termination of COL Agreement. Upon the execution of this Agreement,
that certain Joint Marketing Agreement, dated April 12, 2002, between COL and
CREDCO, together with any modifications or amendments thereto, shall be
terminated and of no further force and effect.
7.4 Termination With Respect to DealerTrack Companies. DT shall have the
right, upon notice to CREDCO to terminate this Agreement with respect to any
DealerTrack Company, including COL, at any time any DealerTrack Companies (a)
cease to be a controlled Affiliate of Parent, or (b) cease to offer credit
bureau reports through the DealerTrack Network.
7.5 Survival. Sections 6.9(g), 7.5, 8 (but only with respect to third
party claims arising during the term of this Agreement), 9 and 10 shall survive
any expiration or termination of this Agreement.
SECTION 8.
INDEMNIFICATION; LIMITATION ON LIABILITY
8.1 CREDCO Indemnity. CREDCO agrees to indemnify and hold harmless the
DealerTrack Companies and their directors, officers, employees and Affiliates
(the "DT Indemnified Parties") from and against any and all costs, damages,
disbursements, expenses, liabilities, losses, penalties or settlements,
including but not limited to, reasonable legal, accounting and other
professional fees and expenses incurred in the investigation, collection,
prosecution and defense of claims and amounts paid in settlement, arising from
any third party claims, suits or actions against the DT Indemnified Parties (a)
in connection with the content of any CREDCO Product or CREDCO-supplied
marketing materials, unless the content of such CREDCO Product or
CREDCO-supplied marketing materials was altered, corrupted
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DealerTrack Joint Marketing Agreement
or otherwise modified as a result of any action or inaction by a DealerTrack
Company or any Affiliate thereof and/or as a result of the functioning of or
malfunction in the DealerTrack Network, the DealerTrack Web Product or any other
system of a DealerTrack Company or any Affiliate thereof, or (b) in connection
with CREDCO's breach of any representation, warranty or covenant in Section 3.4.
8.2 DealerTrack, DT and COL Indemnity. The DealerTrack Companies, jointly
and severally, agree to indemnify and hold harmless CREDCO and its directors,
officers, employees and Affiliates (the "CREDCO Indemnified Parties") from and
against any and all costs, damages, disbursements, expenses, liabilities,
losses, penalties or settlements, including but not limited to, reasonable
legal, accounting and other professional fees and expenses incurred in the
investigation, collection, prosecution and defense of claims and amounts paid in
settlement, arising from any third party claims, suits or actions against the
CREDCO Indemnified Parties to the extent that such third party claims, suits or
actions arise from (a) any alteration, corruption or modification of the content
of any CREDCO Product in connection with the delivery or distribution of such
CREDCO Product by any DealerTrack Company, including, without limitation, as a
result of the functioning of or malfunction in the DealerTrack Network or any
other system of a DealerTrack Company, or (b) Excluded Liabilities.
8.3 No Consequential Damages. Except with respect to indemnification for
third party claims under Sections 8.1 and 8.2, neither party shall be liable to
the other party for any consequential, incidental, special or indirect damages
under any legal theory or cause of action arising from or relating to this
Agreement.
8.4 Limitation on Liability. Neither party shall be liable to the other
party under this Agreement for any reason, or under any legal theory, for
monetary damages in excess of an aggregate amount of $5,000,000. In the event
that any party's damages under this Agreement, in the aggregate, have reached
the foregoing amount, such party shall have the right to terminate this
Agreement upon thirty (30) days notice to the other party.
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DealerTrack Joint Marketing Agreement
SECTION 9
CONFIDENTIAL INFORMATION
CREDCO and each of its Affiliates, on the one hand, and each of Parent and
each DealerTrack Company, on the other hand, agree to use Confidential
Information of the other only for the uses permitted in this Agreement, and will
not disclose any such information to anyone else except its employees and agents
with a need to know. CREDCO and each of its Affiliates, on the one hand, and
each of Parent and each DealerTrack Company, on the other hand, agrees to use
diligent efforts and at least the same degree of care that it uses to protect
its own Confidential Information to prevent the unauthorized use and disclosure
of the other's Confidential Information, including, without limitation,
requiring its employees, Affiliates and agents to comply with the foregoing
requirements. For purposes of this Agreement, the "Confidential Information" of
a person includes all proprietary information of a person designated to the
recipient of such Confidential Information as confidential or proprietary, and
any other information, whether or not so designated, that is of such a nature
that the receiving person should reasonably realize that unauthorized disclosure
would be likely to cause significant competitive detriment to the disclosing
person, including, without limitation, the customer list of any person, customer
activity of any person and any and all matters relating to pricing (other than
the quotation to a Dealer of CREDCO's retail pricing). CREDCO and each of its
Affiliates, on the one hand, and each of Parent and each DealerTrack Company, on
the other hand, agree to keep the terms of this Agreement and all exhibits
confidential, except that CREDCO may disclose relevant portions of this
Agreement to any of the Repositories upon written request.
SECTION 10
GENERAL
(a) CREDCO, on the one hand, and each DealerTrack Company, on the other
hand, are independent contractors with respect to the transactions subject to
this Agreement, and neither CREDCO, on the one hand, nor any DealerTrack
Company, on the other hand, shall in any way represent itself as an agent,
employee, joint-venturer, or general representative of the other. This does not
in any way preclude joint advertising and selling efforts.
(b) All notices shall be in writing and shall be delivered to the
addresses indicated on the first paragraph of this Agreement to the attention of
the persons specified below, or to such other addresses and persons that the
parties may specify by notice given pursuant hereto. Notices to Parent and/or
the DealerTrack Companies shall be sent to the attention of Xxxx X'Xxxx and Xxxx
Xxxxxx at 000 Xxxxxx Xxxx, Xxxxxxxx, XX 00000, Fax: 000-000-0000, and notices to
CREDCO shall be sent to the attention of S. Xxxx Xxxxxx and Xxxxxxx Xxxxxxx at
00000 Xxxxx Xxxxxxxx Xxx, Xxxxx, Xxxxxxxxxx 00000, Fax: 000- 000-0000. Written
notices sent as provided above shall be deemed to have been given and received
on the earlier of (a) the date of receipt of sent by personal delivery or
facsimile, (b) one business day after sending by overnight courier, or (c) three
business days after deposit in the U.S. mail (certified or registered) whichever
is applicable.
(c) This Agreement shall not be changed, modified, or amended, except by a
writing signed by all parties hereto.
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DealerTrack Joint Marketing Agreement
(d) This Agreement (including the recitals and exhibits hereto) sets forth
the entire agreement of the parties as to the subject matter hereof and
supersedes all existing agreements and all other communications, whether written
or oral, between them concerning such subject matter.
(e) THERE ARE NO REPRESENTATIONS, WARRANTIES OR AGREEMENTS OF THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OTHER THAN THOSE EXPLICITLY
SET FORTH HEREIN (INCLUDING ANY EXHIBIT ATTACHED HERETO). THE PARTIES HEREBY
DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(f) Neither party may assign this Agreement (whether voluntarily, pursuant
to sale, merger, change in control, or any similar transaction, by operation of
law, or otherwise) without the written consent of the other party, and any such
purported assignment shall have no affect.
(g) This Agreement is intended for the benefit of, and may be enforced
solely by, the parties hereto and their successors and permitted assigns, and no
third party (including without limitation, any DealerTrack Participating
Customer) shall have any rights in connection with this Agreement.
(h) This Agreement shall be governed by the laws of the state of
California without reference to the principles of conflict of laws of such
state.
(i) For purposes of this Agreement, an "Affiliate" of a person means an
entity which is controlled by such person, controls such person, or is under
common control with such person. Defined terms in this agreement include the
plural and the singular.
(j) Parent agrees to cause its controlled Affiliates that offer credit
bureau reports through the DealerTrack Network (which the parties agree are DT
and COL as of the date hereof) to comply with the terms of this Agreement. In
the event Parent offers access to the DealerTrack Network, Parent agrees to
abide by the terms of this Agreement as though it were a DealerTrack Company.
(k) For the avoidance of doubt, the only exhibits to this Agreement are
Exhibits B, C and D.
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DealerTrack Joint Marketing Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers, effective as of the first
date written above.
FIRST AMERICAN REAL ESTATE SOLUTIONS, DEALERTRACK HOLDINGS, INC. (only for
LLC purposes of Sections 7.2, 9 and 10)
By: By: ________________________________
--------------------------
DEALERTRACK, INC. CREDIT ONLINE, INC.
By: ________________________________ By:
--------------------------------
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DealerTrack Joint Marketing Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized officers, effective as of the first
date written above.
FIRST AMERICAN REAL ESTATE SOLUTIONS, DEALERTRACK HOLDINGS, INC. (only for
LLC purposes of Sections 7.2, 9 and 10)
By: ________________________________ By:
--------------------------------
DEALERTRACK, INC. CREDIT ONLINE, INC.
By: /s/ [ILLEGIBLE] By: ________________________________
--------------------------------
S-l
DealerTrack Joint Marketing Agreement
