Exhibit 10.35
DEALERTRACK
LENDER AGREEMENT
This DealerTrack Lender Agreement is made as of the 26th day of September, 2001
(the "Effective Date") by and between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("DealerTrack"),
with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, and Capital One Auto Finance (Lender"), with its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇▇▇.
BACKGROUND
DealerTrack operates "▇▇▇▇▇▇▇▇▇▇▇.▇▇▇," an automated credit application
entry, routing and servicing system which (i) allows automobile dealers to input
credit applications and to transmit electronically such credit applications to
lending institutions, (ii) allows such automobile dealers to track the approval
process of such credit applications, and (iii) allows such lending institutions
to electronically transmit credit decisions back to such automobile dealers. In
addition, the DealerTrack service also allows dealers to review prospect
reports, dealer reserve statements, retail and lease rates, residual value
information and payoff quotes from subscribing lending institutions and such
other services provided by DealerTrack from time to time. Lender is a lending
institution that desires to subscribe to and use the DealerTrack service to,
among other things, electronically receive credit applications and transmit
credit decisions. Use of the DealerTrack service requires the development of an
interface between DealerTrack's computer and Lender's credit processing system
which permits credit applications to be received by Lender's credit processing
system and Lender's credit decisions to be transmitted to DealerTrack's
computer. Development of this interface requires the performance of certain
tasks by DealerTrack and the performance of other tasks by Lender. This
DealerTrack Lender Agreement sets forth (i) the respective responsibilities of
each party with respect to the development of the interface, and (ii) the terms
and conditions governing DealerTrack's operation of and Lender's subscription to
and use of the DealerTrack service.
TERMS AND CONDITIONS
IN CONSIDERATION OF the mutual covenants and agreements set forth herein,
DealerTrack and Lender, intending to be legally bound, agree as follows:
1. Definitions As used in this Agreement, the following capitalized terms have
the indicated meanings:
(a) "Acceptance Date" means the date upon which the Lender System is first
capable of interfacing with the Service to receive credit application data from
a DealerTrack Dealer, to transmit a credit decision back to such DealerTrack
Dealer, and to allow DealerTrack Dealers to view credit application and contract
status information.
(b) "Affiliate" of a party means any person or entity (i) that owns,
directly or indirectly, through one or more affiliates, at least a majority of
the voting capital stock of such party, or (ii) at least a majority of whose
voting capital stock is owned, directly or indirectly, through one or more
affiliates, by such party, or (iii) at least a majority of whose voting capital
stock is owned directly or indirectly, through one or more affiliates, by
another person or entity that at such time also owns, directly or indirectly,
through one or more affiliates, at least a majority of the voting capital stock
of such party. A person or entity shall be considered an Affiliate only so long
as it continues to satisfy the criteria for an Affiliate established in this
Section l(b).
(c) "Agreement" means this DealerTrack Lender Agreement, as it may from
time to time be amended or modified by the mutual consent of the parties or in
accordance with its terms, and all exhibits attached to this Agreement, as they
may from time to time be modified.
(d) "Data" means (i) credit application data encompassing the information
set forth on the credit application form(s) utilized by the Service, as
transmitted in electronic form by means of the Service by a DealerTrack Dealer,
(ii) notice of the credit decision relating to such credit applications, as
transmitted in electronic form by means of the Service by Lender (or any Lender
Affiliate), (iii) credit application and contract status information, prospect
reports, dealer reserve status, retail and lease rates, residual value
information, payoff quotes, (iv) any third party data (e.g., value guide
information) which may be accessed or requested by means of the Service, and
other information that is provided by the Service. DealerTrack may, from time to
time and with prior written notice, add additional data fields to, or as
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appropriate, delete certain data fields from, the Service. Data entered on the
Service in such additional fields shall be included in the term "Data."
(e) "DealerTrack Computer" means the computer(s) controlled and operated by
DealerTrack on which DealerTrack maintains the computer programs supporting the
Service.
(f) "DealerTrack Dealer" means an automobile dealer or other automobile
credit originator that is a subscriber to the Service.
(g) "DealerTrack Financial Institution" means a bank or other lending
institution which is a subscriber to the Service, including without limitation
Lender.
(h) "DealerTrack Interface Components" means and consists of the
DealerTrack Interface Equipment Components and the DealerTrack Interface
Software Components.
(i) "DealerTrack Interface Equipment Components" means the components of
the Interface Equipment for which DealerTrack is responsible as set forth in the
Interface Development Schedule.
(j) "DealerTrack Interface Software Components" means the components of the
Interface Software for which DealerTrack is responsible as set forth in the
Interface Development Schedule.
(k) "DealerTrack Marks" means trademarks, service marks, trade names,
domain names and corporate and brand identification and indicia, including,
without limitation, word marks, logos, designs and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional names or
images, product designations and identifications, whether registered or not, of
DealerTrack or DealerTrack's Affiliates.
(l) "DealerTrack Site" means the DealerTrack site on the World Wide Web
that is owned, operated and/or controlled by DealerTrack or any DealerTrack
Affiliate that provides the Service as set forth in this Agreement.
(m) "Documentation" means the system and user documentation for the Service
provided by DealerTrack to DealerTrack Financial Institutions generally, as
enhanced and/or modified by DealerTrack from time to time.
(n) "Effective Date" means the date first set forth above when this
Agreement becomes legally binding upon the parties.
(o) "Force Majeure Event" shall mean fire, flood, earthquake, elements of
nature or acts of God, acts of war, terrorism, riots, civil disorders,
rebellions or revolutions, strikes, lockouts or labor difficulties or any other
cause beyond the reasonable control of a party (except for subcontractor
defaults which do not result from such events).
(p) "Interface" means and consists of the Interface Equipment and the
Interface Software, and establishes, by means of the Service, the capability for
the Lender Computer to receive Data from, and transmit Data to, the DealerTrack
Computer.
(q) "Interface Development Schedule" means the written schedule attached
hereto as Exhibit C (as revised from time to time) developed and mutually agreed
upon by DealerTrack and Lender which sets forth the tasks and respective
responsibilities of the parties relating to the development of the Interface,
and the timeframes for accomplishing such tasks. The Interface Development
Schedule shall be in the form of the Interface Development Schedule Exhibit
attached to the Agreement, unless otherwise revised by mutual agreement of the
parties.
(r) "Interface Equipment" means the DealerTrack Interface Equipment
Components and the Lender Interface Equipment Components.
(s) "Interface Requirements Documents" means the document (as revised from
time to time) provided by DealerTrack to Lender describing the technical
requirements which the Lender Interface Software Components must meet in order
to allow Lender and Lender Affiliates to utilize the Service.
(t) "Interface Software" means all software code developed in accordance
with the Interface Development Schedule and utilized by the parties, to permit
the electronic transmission of Data between the DealerTrack Computer and
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the Lender System in a format that permits the Data to be (i) transmitted from
the Service into the Lender System for processing, and (ii) transmitted from the
Lender System back to the Service upon completion of such processing. The
Interface Software consists of the DealerTrack Interface Software Components and
the Lender Interface Software Components.
(u) "Intellectual Property" means any intellectual property or proprietary
rights, including, without limitation, copyright rights (including rights in
audiovisual works), moral rights, trademarks (including logos, slogans, domain
names, trade names, service marks), patent rights (including patent applications
and disclosures), know-how, inventions, rights of priority and trade secret
rights, recognized in any country or jurisdiction in the world.
(v) "Lender Computer" means the computer(s) controlled and operated by
Lender or Lender Affiliates on which Lender or Lender Affiliates maintain the
Lender Software.
(w) "Lender Interface Components" means and consists of the Lender
Interface Equipment Components, Lender's Interface Server and the Lender
Interface Software Components.
(x) "Lender Interface Equipment Components" means the components of the
Interface Equipment for which Lender is responsible as set forth in the
Interface Development Schedule. The Lender Interface Equipment Components
consist of the physical connections and associated equipment between the
Lender's Interface Server and the DealerTrack Computer.
(y) "Lender's Interface Server" means the computer(s) on which the Lender's
Interface Software Components are maintained. The Lender's Interface Server
resides at the site of the Lender and is connected to both the DealerTrack
Computer and the Lender System. The Lender's Interface Server is owned and
operated by the Lender or a Lender Affiliate.
(z) "Lender Interface Software Components" means the components of the
Interface Software for which Lender is responsible as set forth in the Interface
Development Schedule.
(aa) "Lender Marks" means trademarks, service marks, trade names, domain
names and corporate and brand identification and indicia, including, without
limitation, word marks, logos, designs and other picture marks, phrases,
jingles, composite marks, corporate, commercial and institutional names or
images, product designations and identifications, whether registered or not, of
Lender or Lender's Affiliates.
(bb) "Lender Software" means, Lender's, and any Lender Affiliates' credit
underwriting software (whether Internally developed, or licensed, by Lender or
Lender Affiliate) which processes and decisions credit applications transmitted
by means of the Service.
(cc) "Lender System" means, collectively, the Lender Software, the Lender
Computer, and all operating or system software installed on the Lender Computer.
(dd) "Service" means the multi-lender Internet-based system used to link
DealerTrack Dealers with DealerTrack Financial Institutions to allow submission
and tracking of credit applications and the related loans and leases associated
with such credit applications to finance the purchase or lease of Automobiles,
to allow DealerTrack Financial Institutions to provide information to
DealerTrack Dealers regarding loans and leases originated by such DealerTrack
Financial Institutions through such DealerTrack Dealers and such other services
provided by DealerTrack from time to time plus, as the context permits, all
equipment, computer programs, patents, trade secrets, designs, documentation,
manuals and specifications thereof or Incorporated therein, including the
DealerTrack Interface Components, but not including the Lender System or the
Lender Interface Components.
(ee) "Tax" or "Taxes" shall mean any net income, alternative or add-on
minimum tax, gross income, gross receipts, sales, use, ad valorem, franchise,
capital, profits, license, withholding, payroll, employment, excise, severance,
stamp, occupation, premium, property, custom duty, transfer, documentary or
other tax, governmental fee or other like assessment or charge of any kind
whatsoever, including any obligation to contribute to the payment of a tax
determined upon a consolidated, combined or unitary basis with respect to a
group of corporations any Information reporting or backup withholding
obligation, liability or penalty, together with any interest or any penalty,
addition to tax or additional amount imposed by any governmental authority
responsible for the imposition of any such tax.
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2. Subscription to the Service Lender hereby subscribes to the Service, and
DealerTrack agrees to provide the Service to Lender and Lender Affiliates for
the term of this Agreement, for use by Lender and Lender Affiliates in the
United States in accordance with the terms of this Agreement As a prerequisite
for Lender and Lender Affiliates to use the Service, DealerTrack and Lender must
develop and implement the Interface in accordance with Section 3 below, and
maintain the Interface in accordance with Section 4 below. In addition to the
responsibilities of the parties set forth in Section 4 below relating to
maintenance and modification of the Interface, the responsibilities of each
party with respect to ongoing operation and use of the Service are set forth in
Sections 5 and 6 below.
3. Interface Development With respect to the development of the Interface,
DealerTrack and Lender shall perform their respective responsibilities as set
forth in this Section 3.
(a) Immediately after the Effective Date, both parties shall consult with
each other on a continuing basis and as reasonably necessary to finalize the
Interface Development Schedule, with the objective of finalizing the Interface
Development Schedule as soon as possible, and no later than thirty (30) days
after the Effective Date. The form of the Interface Development Schedule shall
set forth the respective responsibilities of each party relating to the
development of the Interface. To finalize the Interface Development Schedule
with respect to development of the Interface for Lender, the parties shall
establish the date on which they shall commence work on their respective
responsibilities (the "Interface Development Schedule Commencement Date") and
the schedule for completion of such responsibilities. Upon finalization and
execution by the parties of the Interface Development Schedule, the Interface
Development Schedule shall become a part of this Agreement as Exhibit C and
shall be binding on both parties. Both parties shall proceed with their
respective responsibilities as set forth in the Interface Development Schedule
in a diligent manner and shall use commercially reasonable efforts to allocate
such skilled personnel and other resources to the project as shall be necessary
to complete the development of the Interface so that the Acceptance Date occurs
within one hundred and twenty (120) days of the Interface Development Schedule
Commencement Date.
(b) DealerTrack has either provided the Interface Requirements Document to
Lender under a separate Non-Disclosure Agreement between the parties, or shall
provide the Interface Requirements Document to Lender following the Effective
Date. Lender acknowledges that the sole purpose for DealerTrack's disclosure of
the Interface Requirements Document to Lender is to allow Lender to develop and
maintain the Lender Interface Software Components and changes to the Lender
System in connection with Lender's use of the Service under the terms of this
Agreement. If the Interface Requirements Document was disclosed to Lender under
a separate Non-Disclosure Agreement, then such disclosure is now governed by the
terms of this Agreement, and the terms of such Non-Disclosure Agreement with
respect to the subject matter of this Agreement are hereby superseded by the
terms of this Agreement.
(c) DealerTrack and Lender shall cooperate reasonably and in good faith
with respect to such issues that may arise from time to time in connection with
the development of the Interface, to the extent that specific responsibility has
not been designated to one party or the other in this Agreement. The foregoing
notwithstanding, unless otherwise agreed in writing, DealerTrack shall not be
required to incur any expenses or costs in connection with such cooperation to
the extent that such cooperation requires its involvement in any tasks other
than those specifically set forth in the Interface Development Schedule. If
Lender requires DealerTrack to perform any such tasks and DealerTrack agrees,
the parties agree to negotiate in good faith the terms and related costs (if
any) associated with such tasks.
(d) The parties shall use their best efforts to cause the Acceptance Date
to occur by the earlier of (i) one hundred and twenty (120) days after the
Interface Development Schedule Commencement Date, or (ii) one hundred and fifty
(150) days after the Effective Date.
4. Maintenance of and Modifications to the Interface With respect to maintenance
of and modifications to the Interface, the parties shall perform their
respective responsibilities as set forth in this Section 4.
(a) DealerTrack shall be responsible for maintaining the DealerTrack
Interface Components and the DealerTrack Computer so that, subject to Lender's
performance of its obligations under this Agreement, the Lender System shall be
capable of receiving Data from, and transmitting Data to, the DealerTrack
Computer.
(b) Lender shall be responsible for maintaining (i) the Lender Interface
Software Components and the Lender's Interface Server in accordance with the
Interface Requirements Document, and (ii) the Lender Interface Equipment
Components in accordance with the applicable maintenance standards of the
equipment manufacturer so as to not adversely impact the performance of the
Service. In addition, Lender shall develop a system to back up the Lender's
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Interface Server. Lender acknowledges that DealerTrack shall not be responsible
for any problems caused in whole or in part by failure of Lender to maintain the
Lender Interface Components in accordance with Section 4.
(c) In the event that DealerTrack at any time makes any generally released
modifications to the programs supporting the Service on the DealerTrack
Computer, and such modifications make changes to the Interface necessary or
advisable, DealerTrack agrees to the following: (i) Dealer to give Lender at
least ninety (90) days prior written notice of the modifications, unless
otherwise required by applicable law. Failure to provide Lender with timely
notice of any modification shall constitute a material breach to this Agreement;
and (ii) Lender shall have the right to terminate this Agreement upon 30 days
written notice to DealerTrack if any generally released modification
significantly negatively impacts Lender's access to, efficiency,
responsiveness, or ability to use either the DealerTrack Computer, Interface, or
the Lender computer system.
(i) With respect to changes to the Interface which are deemed
necessary by DealerTrack: (i) DealerTrack shall be responsible, at its
expense, for making such necessary changes to the DealerTrack Interface
Components prior to releasing the modifications to such programs supporting
the Service, and (ii) Lender shall have the right to terminate this
Agreement upon 30 days written notice to DealerTrack if any proposed
necessary modification to the Interfaces significantly negatively impacts
Lender's access to, efficiency, responsiveness, or ability to use either
the DealerTrack Computer, Interface, or the Lender computer system. Lender
shall be responsible, at its expense, for making the necessary changes to
the Lender Interface Components. DealerTrack shall not implement such
modifications to the programs supporting the Service prior to end of the
ninety (90) day notice period so as to avoid any interruption in Lender's
use of the Service. The parties shall cooperate to ensure that such changes
are made properly and in a timely manner. The foregoing notwithstanding,
DealerTrack shall not be responsible for any interruption in Lender's use
of the Service caused by Lender's failure to Implement the appropriate
changes to the Lender Interface Components, except to assist Lender as
reasonably appropriate in implementing such changes.
(ii) With respect to changes to the Interface which are deemed
advisable, but not necessary by DealerTrack, Lender shall not be required
to implement such changes. If Lender elects to implement the changes, upon
the request of Lender, the parties shall establish a mutually agreeable
schedule for making such changes to their respective components of the
Interface, with the objective of making such changes properly and in a
manner that allows Lender to begin to utilize the additional functionality
within a reasonable timeframe. However, DealerTrack shall not implement
such modifications to the programs supporting the Service prior to end of
the ninety (90) day notice period so as to avoid any interruption in
Lender's use of the Service. The parties shall cooperate to ensure that
such changes are made properly and in a timely manner. The foregoing
notwithstanding, DealerTrack shall not be responsible for any interruption
in Lender's use of the Service caused by Lender's failure to implement the
appropriate changes to the Lender Interface Components, except to assist
Lender as reasonably appropriate in implementing such changes. If Lender
elects not to implement the changes, DealerTrack shall not be responsible
for the inability of Lender to utilize additional functionality of the
Service that would be available with such changes.
5. Responsibilities of DealerTrack Relating to On-Going Operation of the Service
In addition to DeaterTradcs obligations under Section 3 and 4 above, with
respect to the on-going operation of the Service, DealerTrack shall perform its
responsibilities as set forth in this Section 5.
(a) The Service and the DealerTrack Site shall be hosted, operated and
maintained in accordance with the service levels set forth in Exhibit A attached
hereto and in accordance with such other performance standards mutually agreed
upon by the parties.
(b) As part of the Service, and at all times during the term hereof,
DealerTrack shall maintain and enforce security procedures in accordance with
the security guidelines set forth in Exhibit A hereto.
(c) DealerTrack shall provide DealerTrack Dealers with customer and
technical support in accordance with the standards set forth in Exhibit A
attached hereto.
(d) DealerTrack will use reasonable, good faith efforts to provide
appropriate resources including technical, implementation and program management
support to establish and maintain the DealerTrack Site and the Service.
DealerTrack will provide to Lender a contact list of support, technical,
marketing and program management representatives that may be contacted by
Lender.
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(e)DealerTrack shall implement the necessary measurement, monitoring tools
and reporting procedures required to measure, monitor and report DealerTrack's
performance against the applicable service levels. Such measurement, monitoring
and reporting shall permit reporting at a level of detail sufficient to verify
compliance with the service levels. Upon request and during normal business
hours, Lender shall have the right, but not the obligation, to audit such tools
and procedures and DealerTrack shall provide Lender with information and access
to such tools and procedures for purposes of verification.
(f) DealerTrack shall implement necessary procedures and systems
capabilities, to the reasonable satisfaction of Lender, to ensure that only
those DealerTrack Dealers designated by Lender from time to time are capable
of transmitting and receiving Data to and from Lender by means of the Service.
(g) DealerTrack shall send to each DealerTrack automotive dealer, at
DealerTrack's sole cost, two (2) communications promoting the connectivity of
the Lender to DealerTrack during the first twelve (12) months following the
Effective Date of this agreement.
6. Responsibilities of Lender Relating to Use of the Service In addition to
Lender's responsibilities under Section 3 and 4 above, with respect to Lender's
use of the Service, Lender shall perform its responsibilities in accordance with
this Section 6.
(a) Lender shall be responsible for maintaining the Lender System and shall
exercise commercially reasonable efforts to ensure that the Lender System
is operational so that the Lender System is capable of receiving Data from, and
transmitting Data to, the DealerTrack Computer. Lender shall exercise
commercially reasonable efforts to ensure that any changes to the Lender System
do not interrupt (i) the transfer of Data between the DealerTrack Computer and
the Lender Computer, or (ii) the processing of Data by the Lender Software.
(b) Lender shall operate and manage the Lender System in such a manner as
to keep the Lender System from degrading the performance of the DealerTrack
Computer or otherwise adversely impacting the Service in a manner that is
inconsistent with proper operation of the Service. In the event of such
degradation or adverse impact, upon notification from DealerTrack, Lender shall
exerdse commercially reasonable efforts to terminate those processes causing
such degradation or adverse impact and shall implement any necessary changes to
the Lender System to prevent such degradation or adverse impact from
reoccurring. DealerTrack shall cooperate in good faith with Lender as reasonably
appropriate to assist Lender in connection with Lender's obligations under this
Section 6(b).
(c) Lender acknowledges that access to the Service shall be restricted to
persons logging in with the proper user identification code/password. Lender
shall be responsible for limiting access to its user identification
code(s)/password(s) to authorized personnel and for all Service related charges
Incurred under its user identification code(s)/password(s), including the misuse
or unauthorized use thereof. Lender agrees to hold DealerTrack harmless from,
and indemnify it against, all claims, causes of action, losses, liabilities or
expenses (including reasonable attorneys' fees) arising in connection with any
misuse or unauthorized use of Lender's user identification code(s)/password(s),
except is such misuse or unauthorized use is solely as a result of a hacker
intrusion into either the DealerTrack Computer, the DealerTrack Site or the
DealerTrack Interface Components. Lender shall be solely responsible for any
additional security measures it wishes to take and DealerTrack shall have no
liability for any adverse impact that such measures may have on Lender's ability
to utilize and/or benefit from the functionality of the Service. Further,
DealerTrack shall not be liable for any losses or damages experienced by Lender
due to Lender's implementation of or failure to implement security measures.
(d) Lender shall be solely responsible for developing, implementing and
maintaining any and all back-up procedures and systems, redundant systems and
disaster recovery systems relating to the Lender System and the Lender's
Interface Server. Lender acknowledges that Lender is solely responsible for the
Lender System, and that DealerTrack shall have no responsibility for any
problems caused in whole or in part by Lender's development, implementation or
maintenance of, or failure to develop, implement or maintain, back-up, redundant
or disaster recovery systems relating to the Lender System.
(e) Lender shall cooperate with DealerTrack in accordance with
DealerTrack's standard procedures with respect to the enabling and disabling of
DealerTrack Dealers to transmit credit applications to Lender by means of the
Service.
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(f) Lender shall use commercially reasonable best efforts to promote the
System to automotive dealers and other automobile credit originators that the
Lender or Lender's Affiliates is engaged as an indirect lender to cause such
automotive dealers and automobile credit originators to enroll as DealerTrack
Dealers and use the System.
(i) In furtherance but not in limitation of the foregoing, Lender
shall send to each such automotive dealer and automobile credit originator,
at Lender's sole cost and expense, at least two (2) communications
(individually, a "Promotion") during the first twelve (12) months following
the Effective Date of this Agreement.
(ii) Any advertising, marketing, promotional material or other
material (whether in print, electronically or otherwise) used in connection
with a Promotion that is published by a Lender and/or contains the
DealerTrack Marks ("Materials") must be approved in advance by DealerTrack
in writing. Lender shall cause all Materials to be delivered or made
available to DealerTrack for review, comment, and approval or disapproval.
Lender shall not publish or distribute any Materials without the prior
written approval of DealerTrack, which approval shall not be unreasonably
withheld. If, within ten (10) business days of submitting such Materials
for approval, DealerTrack has not notified the Lender of disapproval, such
Materials shall be deemed approved. Lender may not amend, modify, or alter
Materials as they appear in the version delivered for pre-approval after
they have been approved by DealerTrack, except with the explicit written
approval of DealerTrack.
7. Resources
(a) At all times during the term of this Agreement, each party shall
designate one person and one alternate to serve as its primary contact and
project authority with respect to issues relating to this Agreement, and shall
disclose the identities of such persons to the other party. The project
authorities and alternates will be authorized to make all decisions and to
request and receive services from the other party with respect to this
Agreement. Either party may change the project authority and/or alternate at any
time by written notice to the other party.
(b) At all times during the term of this Agreement, each party shall be
responsible for dedicating appropriate and sufficient resources to meet its
obligations under this Agreement.
8. Additional Services and Products DealerTrack may, from time to time, offer
additional services and products ("Additional Products") by means of the
Service, other than those identified in this Agreement. DealerTrack shall
provide Lender with reasonable notice of the Additional Products as they become
generally available to DealerTrack Financial Institutions, including the fees,
charges and other terms applicable to the use of such Additional Products.
Lender shall have the option, in its sole discretion, whether to use such
Additional Products. In the event that Lender does use such Additional Products,
Lender agrees to use such Additional Products in accordance with the applicable
terms, and shall be responsible for and shall pay to DealerTrack the additional
applicable fees and charges, if any, in accordance with the terms of this
Agreement.
9. Term and Termination
(a) The terms of this Agreement shall begin on the Effective Date, and
shall continue for a period of two (2) years from the Acceptance Date (the
"Initial Term") unless sooner terminated as provided below. This Agreement will
terminate upon expiration of the Initial Term, unless the Parties mutually agree
in writing to renew the terms of this Agreement for successive Renewal Terms of
one (1) year, by providing such written acknowledgement no less than sixty (60)
days prior to the expiration of the Initial Term or applicable Renewal Term.
(b) This Agreement may be terminated by a party for cause immediately by
written notice upon the occurrence of any of the following events: (i) if the
other ceases to do business, or otherwise terminates its business operations;
(ii) if the other shall fail to promptly secure or renew any material license,
registration, permit, authorization or approval for the conduct of its business
in the manner contemplated by this Agreement, or if any such license,
registration, permit, authorization or approval is revoked or suspended and not
reinstated within thirty (30) days; (iii) if the other breaches any material
provision of this Agreement and fails to fully cure such breach within thirty
(30) days of written notice describing the breach; or (iv) if the other becomes
insolvent; or seeks protection under any bankruptcy, receivership, trust deed,
creditor's arrangement composition or comparable proceeding, or if any such
proceeding is instituted against the other and not dismissed within thirty (30)
days.
(c) This Agreement may be terminated by Lender for cause immediately by
written notice if a bank regulatory agency having authority over Lender issues
an order or directive finding the Service provided to Lender will
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cause Lender to be subject to regulatory sanction unless such Service is
modified and DealerTrack fails to modify such Service in accordance with such
order or directive within such period of time as permitted by such regulatory
agency.
10. Payments and Payment Terms Lender agrees to pay DealerTrack when due the
fees and charges on the Schedule of Fees and Charges set forth in Exhibit B
attached hereto. Unless otherwise specified, DealerTrack shall invoice Lender
monthly for all fees and charges, payable thirty (30) days after receipt of such
invoice.
11. Licenses; Proprietary Rights
(a) In accordance with the terms of this Agreement and for the term
thereof, DealerTrack grants Lender a non-exclusive and non-transferable license
to use the Service in the United States for its own internal business purposes
(and those of Lender Affiliates), and to permit its employees and agents (and
employees and agents of Lender Affiliates) to interact with the Service through
remote computer terminals solely for Lender's internal business purposes (and
those of Lender Affiliates). Lender shall have no right to make any changes or
modifications to the Service except as directed by DealerTrack.
(b) In accordance with the terms of this Agreement and for the term hereof,
DealerTrack grants Lender and Lender Affiliates a non-exclusive and
non-transferable license to use the DealerTrack Marks for the sole purposes of
(i) identifying that it/they are licensed to use the Service and (ii) performing
the obligations set forth in Section 6(f).
(c) In accordance with the terms of this Agreement and for the term hereof,
Lender grants DealerTrack and DealerTrack Affiliates a non-exclusive and
non-transferable license to use the Lender Marks.
(d) Lender understands and agrees that DealerTrack is the exclusive owner
of and holds and shall retain, all right, title and interest in and to the
DealerTrack Intellectual Property, the DealerTrack Marks, the Service, the
Interface Requirements Document, the DealerTrack Interface Components and the
DealerTrack Computer, including any enhancements, upgrades, improvements,
changes, modifications, revisions or derivative works made to the same from time
to time (the "DealerTrack Property"), and Lender shall have no ownership or use
rights therein except as set forth in this Agreement. Lender agrees, upon
DealerTrack's request and at DealerTrack's expense, to assign to DealerTrack in
writing any proprietary interest that may be conferred upon Lender by law in any
such enhancements, upgrades, improvements, changes, revisions, modifications and
derivative works to the DealerTrack Property. The terms of this provision shall
survive termination of this Agreement whether by expiration of time, operation
of law or other wise.
(e) DealerTrack understands and agrees that Lender is the exclusive owner
of and holds and shall retain, all right, title and interest in and to the
Lender Intellectual Property, the Lender Marks, the Lender System and the Lender
Interface Components, including any enhancements, upgrades, improvements,
changes, modifications, revisions or derivative works made to the same from time
to time (the Lender Property"), and DealerTrack shall have no ownership or use
rights therein except as set forth in this Agreement. DealerTrack agrees, upon
Lender's request and at Lender's expense, to assign to Lender in writing any
proprietary interest that may be conferred upon DealerTrack by law in any such
enhancements, upgrades, Improvements, changes, revisions, modifications and
derivative works to the Lender Property. The terms of this provision shall
survive termination of this Agreement whether by expiration of time, operation
of law or other wise.
(f) Except as expressly permitted under this Agreement, Lender agrees that
neither it nor any Lender Affiliates will, at any time, without written
permission of DealerTrack, (i) copy, duplicate or grant permission to the
Service or any part thereof; or (ii) create, attempt to create, or grant
permission to the source program and/or object program associated with any
software component of the Service; or (iii) decompile, disassemble or reverse
engineer any software component of the Service to develop functionally similar
computer software or services, or modify, alter or delete any of the copyright
notices embedded in or affixed to the copies of any components of the Service;
or (iv) grant permission to any third party to do any of the foregoing.
(g) If and to the extent that DealerTrack incorporates the software and/or
data of any third party in the Service, and use of such third party software
and/or data is not subject to the terms of a license agreement directly between
Lender (and any Lender Affiliate, if applicable) and the third party licensor,
the license of Lender and all Lender Affiliates to such third party software
and/or data shall be defined and limited by the license to the Service granted
by DealerTrack under this Agreement. Lender specifically acknowledges that the
licensors of such third party software and/or data shall retain all ownership
rights thereto, and Lender agrees that it shall not (i) decompile, disassemble
or reverse engineer such third party software for the purpose of revealing the
proprietary information contained therein, or
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otherwise use such third party software to develop functionally similar computer
software; or (ii) reproduce the data therein for purposes other than those
specifically permitted under this Agreement; or (iii) modify, alter or delete
any of the copyright notices embedded in or affixed to such third party software
or data; or (iv) grant permission to any third party to do any of the foregoing.
(h) Lender acknowledges that the right or ability of DealerTrack to license
other lenders to use the Service or DealerTrack Marks is not restricted in any
manner by this Agreement, and that it is DealerTrack's Intention to license a
number of other lenders to use the Service and DealerTrack Marks under separate
agreements. Lender also agrees that DealerTrack shall be free to transmit credit
applications from any DealerTrack Dealers, at the DealerTrack Dealers' request
to other DealerTrack Financial Institutions and non-subscribing lenders. Except
as otherwise provided herein, DealerTrack shall have no liability to Lender for
any such action.
12. Representations and Warranties by DealerTrack
(a) DealerTrack has been duly organized and is validly existing as a
corporation under the laws of the state of its incorporation and is duly
licensed where required or is otherwise qualified in each state in which it
transacts business and is in compliance with such state's applicable laws, rules
and regulations.
(b) DealerTrack has the requisite power, authority and legal right to
execute and deliver this Agreement, engage in the transactions contemplated by
this Agreement, and perform and observe those terms and conditions of this
Agreement to be performed or observed by it hereunder. The person signing this
Agreement has full power and authority to bind DealerTrack. The execution,
delivery and performance of this Agreement, and the performance by DealerTrack
of all transactions contemplated herein, have been duly authorized by all
necessary and appropriate corporate action on the part of DealerTrack.
(c) This Agreement has been duly authorized and executed by DealerTrack and
is valid, binding and enforceable against DealerTrack in accordance with its
terms, except that such enforcement may be subject to bankruptcy (whether
statutory, regulatory or decisional) now or hereafter in effect relating to
creditor's rights generally, and the execution, delivery and performance by
DealerTrack of this Agreement does not conflict with any term or provision of
(i) its certificate of incorporation or by-laws; (ii) any law, rule, regulation,
order, judgment writ, injunction or decree applicable to DealerTrack of any
court regulatory body, administrative agency or governmental body having
jurisdiction over DealerTrack; or (iii) any agreement to which DealerTrack is a
party or by which its property is bound.
(d) No consent approval, authorization or order of, registration or filing
with, or notice to any governmental authority or court is required under
applicable law in connection with the execution, delivery and performance by
DealerTrack of this Agreement.
(e) There is no action, proceeding or investigation pending or, to the best
knowledge of DealerTrack, threatened against it before any court, administrative
agency or other tribunal (i) seeking to assert the invalidity of this Agreement;
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement; or (iii) which could reasonably be expected to materially and
adversely affect its performance of its respective, obligations under, or the
validity or enforceability of, this Agreement.
(f) It has and shall maintain all regulatory approvals, authorizations,
licenses, permits and other permissions, consents and authorities whatsoever
needed to perform its obligations under this Agreement, including, without
limitation, the Service.
(g) In connection with carrying out its obligations contained in this
Agreement, it shall comply at all times with all applicable federal and state
laws, rules and regulations.
(h) No material, product or other aspect of any technology, trade secret or
other Intellectual Property utilized by DealerTrack will Infringe on or violate
any patent, copyright, trade secret, trademark or other proprietary right of any
third party, or is libelous, defamatory or illegal and DealerTrack further
represents and warrants that it has all licenses, approvals, or other
authorizations required for any third party Intellectual Property content on the
DealerTrack Site, except for content provided by or through Lender. The terms of
this Section 12(h) shall survive the termination of this Agreement, whether by
expiration of time, operation of law, or otherwise.
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(i) It shall use commercially reasonable efforts to keep the DealerTrack
Site free from intentionally injurious instructions (e.g. systems "viruses")
that are designed to modify, damage, delete or disable the Lender System. The
terms of this Section 12(j) shall survive the termination of this Agreement,
whether by expiration of time, operation of law, or otherwise.
(j) It shall use commercially reasonable efforts to keep the DealerTrack
Site free from code that could trigger a modification, shut down or disablement
of the Lender System. The terms of this Section 12(j) shall survive the
termination of this Agreement, whether by expiration of time, operation of law,
or otherwise.
(k) DealerTrack shall take all reasonable precautions necessary to ensure
that the DealerTrack Site shall be safeguarded against "hacker" intrusions.
(l) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 12 ARE THE
ONLY WARRANTIES MADE BY DEALERTRACK. SUCH WARRANTIES ARE IN LIEU OF, AND
DEALERTRACK EXPRESSLY HEREBY DEISCLAIMS, ALL OTHER WARRANTIES, EXPRESSED OR
IMPLIED, REGARDING THE SERVICE OR THE DEALERTRACK MARKS INCLUDING, BUT NOT
LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
DEALERTRACK SPECIFICALLY DOES NOT REPRESENT OR WARRANT (i) THAT THE SERVICE WILL
PERFORM WITHOUT INTERRUPTION OR ERROR FREE, (ii) THAT IT MEETS LENDER'S
REQUIREMENTS, OR (iii) THAT ANY OR ALL OF THE DATA PROVIDED THROUGH THE SERVICE
IS ACCURATE OR COMPLETE.
13. Representation and Warranties by Lender
(a) Lender has been duly organized and is validly existing as a corporation
under the laws of the state of its incorporation and is duly licensed where
required or is otherwise qualified in each state in which it transacts business
and is not in default of such state's applicable laws, rules and regulations.
(b) Lender has the requisite power, authority and legal right to execute
and deliver this Agreement, engage in the transactions contemplated by this
Agreement, and perform and observe those terms and conditions of this Agreement
to be performed or observed by it hereunder. The person signing this Agreement
has full power and authority to bind Lender. The execution, delivery and
performance of this Agreement and the performance by Lender of all transactions
contemplated herein, have been duly authorized by all necessary and appropriate
corporate action on the part of Lender.
(c) This Agreement has been duly authorized and executed by Lender and is
valid, binding and enforceable against Lender in accordance with its terms,
except that such enforcement may be subject to bankruptcy (whether statutory,
regulatory or decisional) now or hereafter in effect relating to creditor's
rights generally, and the execution, delivery and performance by Lender of this
Agreement does not conflict with any term or provision of (i) its certificate of
incorporation or by-laws; (ii) any law, rule, regulation, order, judgment, writ
injunction or decree applicable to Lender of any court, regulatory body,
administrative agency or governmental body having jurisdiction over Lender; or
(iii) any agreement to which Lender is a party or by which its property is
bound.
(d) No consent, approval, authorization or order of, registration or filing
with, or notice to any governmental authority or court is required under
applicable law in connection with the execution, delivery and performance by
Lender of this Agreement.
(e) There is no action, proceeding or investigation pending or, to the best
knowledge of Lender, threatened against it before any court, administrative
agency or other tribunal (i) seeking to assert the invalidity of this Agreement;
(ii) seeking to prevent the consummation of any of the transactions contemplated
by this Agreement; or (iii) which could reasonably be expected to materially and
adversely affect its performance of its respective obligations under, or the
validity or enforceability of, this Agreement.
(f) It has and shall maintain all regulatory approvals, authorizations,
licenses, permits and other permissions, consents and authorities whatsoever
needed to perform its obligations under this Agreement.
(g) In connection with carrying out its obligations contained herein, it
shall comply at all times with all applicable federal and state laws and
regulations, including, without limitation, the Federal Truth in Lending Act,
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Regulation Z, Regulation M, the Federal Fair Credit Reporting Act, the Federal
Equal Credit Opportunity Act Regulation B and so-called "fair lending" laws,
rules and regulations.
(h) No material, product or other aspect of any technology, trade secret or
other Intellectual Property utilized by Lender will infringe on or violate any
patent, copyright, trade secret, trademark or other proprietary right of any
third party, or be libelous, defamatory or illegal. The terms of this Section
13(h) shall survive the termination of this Agreement, whether by expiration of
time, operation of law, or otherwise.
(i) It shall use commercially reasonable efforts to keep the Lender System
free from intentionally injurious instructions (e.g. systems "viruses") that are
designed to modify, damage, delete, or disable the DealerTrack Site. The terms
of this Section 13(i) shall survive the termination of this Agreement whether by
expiration of time, operation of law, or otherwise.
(j) It shall use commercially reasonable efforts to keep the Lender System
free from code that could trigger a modification, shut down or disablement of
the DealerTrack Site. The terms of this Section 13(j) shall survive the
termination of this Agreement, whether by expiration of time, operation of law,
or otherwise.
(k) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 13 ARE THE
ONLY WARRANTIES MADE BY LENDER. SUCH WARRANTIES ARE IN LIEU OF, AND LENDER
EXPRESSLY HEREBY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
REGARDING THE LENDER MARKS.
14. Infringement Claims of Third Parties
(a) At its own expense, DealerTrack will defend Lender against any claim by
any third party alleging that the Service or use of the DealerTrack Marks in
accordance with Section 11 above infringes a patent, copyright or other third
party Intellectual Property rights in the United States, and DealerTrack will
pay all costs, damages and attorneys' fees finally awarded to any such third
party in any infringement action or negotiated by DealerTrack in settlement;
provided that Lender provides prompt written notice to DealerTrack of such claim
(if Lender has knowledge), and allows DealerTrack sole control of, and fully
cooperates with DealerTrack in, the defense of such claims and all related
negotiations at DealerTrack's expense.
(b) If the Service and/or the DealerTrack Marks are, or in DealerTrack's
opinion are likely to become, subject to a claim of infringement, DealerTrack,
at its option and expense, shall either (i) procure for Lender and the Lender
Affiliates the right to continue using the Service and/or the DealerTrack Marks;
or (ii) modify the Service and/or the DealerTrack Marks to make it/them
non-infringing in a manner that does not materially impair its/their
functionality. If neither of the foregoing two options is reasonably available
to DealerTrack, than Lender may terminate this Agreement by notice to
DealerTrack.
(c) DealerTrack will have no obligation with respect to any actual or
threatened infringement claim based in whole or in part upon (i) the Lender
System or the Lender Interface Components, or (ii) any enhancements, upgrades or
modifications to the Service and/or the DealerTrack Marks made by Lender, any
Lender Affiliate or any party that Lender authorizes or directs to make such
enhancements, upgrades or modifications, or (iii) Lender's (or any Lender
Affiliate's) failure to use the Service and/or the DealerTrack Marks in
accordance with this Agreement or the Documentation. Lender shall indemnify and
hold DealerTrack harmless from any damages, losses or costs associated with such
claims.
(d) This Section 14 states DealerTrack's entire obligation to Lender with
respect to actual or threatened third party infringement claims. The terms of
this Section 14 shall survive the termination of this Agreement, whether by
expiration of time, operation of law, or otherwise.
15. Confidentiality
(a) Confidential Information. "Confidential Information'' shall mean
nonpublic information revealed by or through a party (a "Disclosing Party") to
the other (a "Receiving Party") including (a) information expressly or
implicitly Identified as originating with or belonging to third parties,
or marked or disclosed as confidential, (b) information traditionally recognized
as proprietary trade secrets, (c) all forms and types of financial, business,
scientific, technical, economic, or engineering information including patterns,
plans, compilations, program devices, formulas, designs, prototypes, methods,
techniques, processes, procedures, programs, or codes, whether tangible or
intangible, and whether or how stored, compiled, or memorialized physically,
electronically, graphically, photographically, or in writing,
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and (d) all copies thereof. Confidential Information shall not include
information which: (a) is publicly available through no action of Receiving
Party; (b) has been in Receiving Party's possession independent of its
relationship with Disclosing Party; (c) has been developed by or become known to
Receiving Party without access to any Confidential Information and outside the
scope of any agreement with Disclosing Party; or (d) is obtained rightfully from
third parties not known to be bound by an obligation of confidentiality.
Notwithstanding anything in this Agreement to the contrary, the Receiving Party
shall comply with all privacy and data protection laws, rules and regulations
which are or which may in the future be applicable to the Service. Without
limiting the generality of the preceding sentence, the Receiving Party agrees
that it will not use nor disclose to any other party any nonpublic personal
information which it receives from a financial institution in connection with
providing Services under this Agreement, except to perform the Service in
accordance with this Agreement. For purposes of this subsection, the terms
"nonpublic personal information" and "financial institution" shall have the
meanings set forth in Section 509 of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (P.L 106-102)
(15 U.S.C. Section 6809) and implementing regulations thereof.
(b) Treatment of Confidential Information. Receiving Party shall treat such
Confidential Information as strictly confidential with at least the same degree
of care as Receiving Party uses for its own confidential information, and, shall
not use, disclose, duplicate, copy, transmit or otherwise disseminate or permit
to be used, disclosed, duplicated, copied, transmitted or otherwise disseminated
such Confidential Information at any time prior to or after the termination of
this Agreement except as expressly permitted under this Agreement. In no event
shall Receiving Party use Confidential Information for its own benefit or that
of any third party, nor shall Receiving Party use Confidential Information to
Disclosing Party's detriment. Receiving Party shall use the Confidential
Information for the purposes authorized by this Agreement and for no other
purpose. Except in fulfillment of this Agreement, Receiving Party shall not
interpret, reverse-engineer, decompile, disassemble, debug or otherwise use any
part of any software to which it is given access by or through Disclosing Party
in connection with this Agreement, nor shall Receiving Party access or generate
corresponding higher level code, access the logic intrinsic thereto; or aid,
abide or permit another to do so. Receiving Party shall not remove any copyright
notice, trademark notice, and/or proprietary legend set forth on or contained
within any of the Confidential Information. Receiving Party shall promptly
notify Disclosing Party in writing of any unauthorized use or disclosure of any
Confidential Information.
(c) Disclosure to Employees and other Parties. Receiving Party may disclose
Confidential Information to employees, independent contractors, subcontractors,
attorneys, accountants and investment advisors ("Personnel"), only to the extent
such Personnel have a need to know such information for the purposes described
in this Agreement and provided each such employee, independent contractor and
subcontractor shall be obligated to comply with the terms and conditions of this
Agreement and each such attorney, accountant or investment advisor shall either
be legally bound to comply with the terms and conditions of this Agreement or so
obligated in writing and such obligations continue even in the event such
Personnel leave the employ of, or no longer provide services to, Receiving
Party. Receiving Party shall be liable for the actions of its Personnel. Except
as otherwise provided herein, neither party shall disclose Confidential
Information to any third party unless (i) required by a federal or state agency
or (ii) required by law, including, but not limited to, by deposition,
interrogatory, request for documents, or similar process. In the event that
Receiving Party is required to disclose Confidential Information for reasons
enumerated in the prior sentence, Receiving Party shall give Disclosing Party
notice in a reasonable amount of time prior to Receiving Party's disclosure of
Confidential Information to allow Disclosing Party to protect its proprietary
interest therein.
(d) Return of Confidential Information. Upon termination or expiration of
this Agreement or upon Disclosing Party's earlier request, Receiving Party shall
promptly deliver to Disclosing Party all Confidential Information, any copies or
partial copies thereof and material containing Confidential Information and
shall purge any Confidential Information from all computer and other data
storage systems, and certify to the Disclosing Party in writing that it has done
so; provided, however, that Receiving Party shall not be required to return or
destroy information which has been provided to (a) its board of directors or (b)
any governmental agency having jurisdiction over the Receiving Party.
Additionally, Receiving Party's legal department may retain one copy of the
Confidential Information and any such other material for archival purposes,
subject to the terms and conditions of this Agreement. The obligations under
this Agreement however, shall survive such occurrence.
(e) Injunctive Relief. Each of the Parties acknowledges that any use or
disclosure of Confidential Information in violation of this Agreement may cause
irreparable injury to the Disclosing Party for which other remedies at law would
be inadequate, and each of the Parties agrees that a Disclosing Party shall have
the right to seek injunctive or other equitable relief as may be necessary or
appropriate to prevent any use or disclosure of the Confidential Information in
violation of this Agreement, and may also exercise such other rights and
remedies as the Disclosing Party may have at law or in equity.
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(f) Survival. The terms of this Section 15 shall survive the termination of
this Agreement, whether by expiration of time, operation of law or otherwise.
16. Privacy
(a) Use and Disclosure of Customer Information
(i) In accordance with Section 15 (Confidential Information)
DealerTrack will protect and keep confidential all nonpublic personal
information about or pertaining to Lender's customers ("Customer
Information") disclosed by Lender in the performance of its duties under
this Agreement. DealerTrack will collect and use Customer Information only
in the ordinary course of business to carry out the purposes for which
Lender disclosed the information under this Agreement.
(ii) Unless prohibited elsewhere in this Agreement, DealerTrack may
disclose Customer Information to its Affiliates or Affiliates of Lender for
the sole purpose of facilitating the performance of its duties and
obligations under this Agreement. DealerTrack may not redisclose Customer
Information to another party, however, unless (I) DealerTrack's
redisclosure is in the ordinary course of business to carry out the
specific purposes for which Lender disclosed the Customer Information to
DealerTrack under this Agreement, and such redisclosure would be lawful if
it had been made directly by Lender; (II) such reuse or redisclosure is
consented to by Lender; or (III) such redisclosure is compelled by law, in
which case DealerTrack will provide prior notice of such disclosure to
Lender.
(iii) During the term of the Agreement, DealerTrack will not retain
Customer Information unless DealerTrack has a specific business purpose to
retain it, which purpose is set forth in or clearly implied by the
Agreement.
(b) Security DealerTrack represents and warrants that it has, and will
continue to have for so long as it retains Customer Information, adequate
administrative, technical, and physical safeguards (i) to insure the security
and confidentiality of customer records and information, (ii) to protect against
any anticipated threats or hazards to the security or integrity of such records,
and (iii) to protect against unauthorized access to or use of such records or
information which could result in substantial harm or inconvenience to any
customer. DealerTrack will immediately notify Lender when DealerTrack discovers
there has been a material breach in its security safeguards required by this
paragraph, or if the security of Customer Information has been or may be
compromised for any reason, and Lender may take all reasonable and appropriate
steps to protect Customer Information in such event.
(c) Monitoring; Compliance DealerTrack will at all times during the term of
the Agreement and for at least two years after termination thereof, keep proper
books and records of account, and will maintain records and information
sufficient to show its compliance with the terms of this Section. DealerTrack
will provide Lender with any third party audit reports made generally available
to other DealerTrack Lenders.
(d) Materiality Breach of this section is a material breach of this
Agreement.
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16. Indemnification
(a) Each party shall indemnify and hold harmless the other, and its parent,
affiliates, subsidiaries, directors, officers, employees and agents, from and
against any and all claims, demands, actions, suits, losses, liabilities,
damages, injuries, fines, penalties, costs and expenses including, without
limitation, reasonable attorneys' fees and court costs arising out of:
(i) a material breach of any provision of this Agreement by the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees or agents; or
(ii) gross negligence, or willful or wanton behavior of the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees, or agents.
(b) The terms of this Section 16 shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or otherwise.
17. Limitation Of Liability
(a) Notwithstanding the provisions of Section 16, in no event shall either
party be liable to the other for any indirect, incidental, special, exemplary or
consequential damages, arising out of this Agreement, including but not limited
to lost profits, business interruption, loss of business information, or cover,
even if such party has been advised of the possibility of such damages;
provided, however, that this limitation shall not apply to: (a) a breach of
Sections 12(h), 13(h), 14 or 15; or (b) a third party claim in which a court has
imposed indirect, special, or consequential damages against the indemnified
party. The terms of this Section 17 shall survive the termination of this
Agreement, whether by expiration of time, operation of law, or otherwise.
(b) In the event of the loss of or damage to any Data on the DealerTrack
Computer or in data transfers between the Lender Computer, any DealerTrack
Dealers' terminals/computers, and the DealerTrack Computer, due to a cause for
which DealerTrack is responsible, DealerTrack shall allow Lender and the
DealerTrack Dealers to re-enter the lost or damaged Data on the DealerTrack
Computer without any additional fees accruing to DealerTrack which shall
constitute Lender's sole remedy in connection with such loss and/or damage.
(c) DealerTrack shall have no duty to verify the content or accuracy of, or
in any manner to analyze, Data. As such, DealerTrack is not acting as a credit
bureau reporting agency in and of itself, and Lender is to refer to the specific
credit bureau(s) when making reference to any credit reports. Lender will have
full responsibility for any decisions and/or analyses in which the Service or
any Data may be used or relied upon. Any reliance by Lender upon any Data or the
Service shall not diminish that responsibility, and Lender agrees to hold
DealerTrack harmless from, and indemnify it against, all claims, expenses,
losses or liabilities (including reasonable attorneys' fees) in connection with
any claim by any third party relating to any decisions or analyses made by
Lender while using any Data or the Service.
18. Taxes DealerTrack shall be responsible for the payment of all Taxes levied
or imposed on or with respect to sales of goods or services by DealerTrack in
connection with the Service or the DealerTrack Site.
19. Insurance DealerTrack, within five (5) business days after the execution of
this Agreement, shall procure and maintain, at its own expense, the required
insurance of the kinds and limits enumerated hereunder, with companies
acceptable to Lender. Lender shall be named as an additional insured under
DealerTrack's Commercial General Liability insurance policy. DealerTrack may
carry, at its own expense, such additional insurance as it may deem necessary.
DealerTrack shall not be deemed to be relieved of any responsibility by the fact
that it carries insurance. The required insurance and limits are as follows:
(a) Errors & Omissions Liability Insurance covering the design,
development, maintenance, operation of the Services, and anything incidental
thereto, for a limit of not less than ten million dollars ($10,000,000);
(b) Intellectual Property Insurance covering infringement of patents,
trademarks, trade secrets, and copyright infringement as respects the design and
development of the systems used to operate and maintain the Service for a limit
of not less than one million dollars ($1,000,000);
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(c) Commercial Blanket Bond covering each employee while engaged in the
work hereunder with a limit of not less than one million dollars ($1,000,000)
and including coverage, without limitation, for property of others in possession
of said employee while performing their duties for Lender;
(d) If DealerTrack has any employees, Workers' Compensation and Employer's
Liability Insurance in accordance with the applicable laws of the State of New
York or the state in which the work is to be performed or of the state in which
DealerTrack is obligated to pay compensation to employees engaged in the
performance of the work. The policy limit under the Employer's Liability
Insurance section shall not be less than one million dollars ($1,000,000) for
any one accident;
(e) Commercial General Liability Insurance covering the work, the
performance of the Service and everything incidental thereto, with limits of not
less than two million dollars ($2,000,000) per occurrence combined single limit,
and extended to cover: (i) Contractual Liability assumed by DealerTrack under
the indemnification set forth in Section 16, (ii) if any of the work is
subcontracted, Independent Contractors Liability providing coverage in
connection with such portion of the work which may be subcontracted, (iii) Broad
Form Property Damage Liability, and (iv) Personal Injury and Advertising
Liability;
(f) Automobile Liability including coverage on owned, hired, and non-owned
automobiles and other vehicles, if used in connection with the performance of
the work, with Bodily Injury and Property Damage limits of not less than two
million dollars ($2,000,000) per occurrence combined single limit;
(g) Building and/or Personal Property Insurance including coverage for the
cost to research, replace, or restore lost information of damaged valuable
papers and records including those that exist on electronic or magnetic media,
against all risks of physical loss or damage including theft, on a replacement
cost basis;
(h) Business Interruption and Extra Expense Insurance against all risks of
physical loss or damage including off-premises power failure and consequential
losses resulting from the disruption of a supplier or subcontractors operations;
and
(i) such other insurance as may be required from time to time by notice to
DealerTrack.
DealerTrack shall have its insurance carrier or carriers issue Certificates
of Insurance to Lender evidencing that all insurance required is in force, and
such certificates shall stipulate that the insurance shall not be canceled or
substantially changed without thirty (30) days prior notice in accordance with
the notice provisions set forth in herein. Should DealerTrack at any time
neglect or refuse to provide the required insurance, or should such insurance be
canceled, Lender shall have the right to procure such insurance and the cost
thereof shall be deducted from monies then due or thereafter to become due
DealerTrack. DealerTrack's insurance shall be primary and all insurance carried
by Lender is strictly excess and shall not contribute with DealerTrack's
insurance.
20. Marks Except as provided herein, DealerTrack will not use the Lender Marks
and Lender will not use the DealerTrack Marks without the other party's prior
written consent. The parties acknowledge and agree that DealerTrack is the owner
of any and all DealerTrack Marks and Lender is the owner of any and all Lender
Marks. The parties acknowledge and agree that they shall not acquire any
ownership rights whatsoever in any Marks of the other party. The terms of this
Section 20 shall survive the termination of this Agreement, whether by
expiration of time, operation of law, or otherwise.
21. Miscellaneous
(a) Entire Agreement This Agreement sets forth the entire agreement
between the parties with respect to the subject matter hereof, and no party
shall be bound by any conditions, definitions, warranties, understandings or
representations with respect to such subject matter other than as expressly
provided herein, or in any prior existing written agreement between the parties.
This Agreement supersedes all prior oral or written representations, agreements,
promises, or other communications, concerning or relating to the subject matter
of this Agreement.
(b) Modifications and Amendments; Waiver. Except as otherwise expressly
provided in this Agreement, this Agreement may not be amended or modified except
by a written agreement signed by authorized representatives of each party. The
failure of DealerTrack or Lender in any one or more instances to insist upon
strict performance of any of the
-15-
terms or provisions of this Agreement will not be construed as a waiver or
relinquishment, to any extent, of the right to assert or rely upon any such
terms or provisions on any future occasion.
(c) Headings. The captions to sections of this Agreement are for
convenience of reference only and do not in any way limit or amplify the terms
or conditions hereof.
(d) Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be invalid or unenforceable, such provision or
requirement will be enforced only to the extent it is not in violation of such
law or is not otherwise unenforceable and all other provisions and requirements
of this Agreement will remain in full force and effect.
(e) Notices. Where notice, approval or similar action by either party is
permitted or required by any provision of this Agreement, such action shall not
be unreasonably delayed or withheld. Any notice, demand or other communication
required or permitted under the terms of this Agreement shall be in writing and
shall be made by Federal Express, Airborne Express, or other similar overnight
delivery service, telegram, telex, facsimile or electronic transmitter or
certified or registered mail, return receipt requested. A notice shall be deemed
to be received by the addressee: one (1) business day after sending, if sent by
overnight delivery service, telegram, telex, facsimile or electronic
transmitter; and three (3) business days after mailing, if sent by certified or
registered mail. Notices shall be addressed as follows:
In the case of notices to Lender:
Capital One Auto Finance
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇
In the case of notices to DealerTrack:
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Any party to this Agreement may from time to time change its address for
notification purposes by giving the other prior written notice of the new
address and the date upon which it will become effective.
(f) Successors and Assigns This Agreement may not be assigned by either
party without the prior written consent of the other party, and any attempted
unauthorized assignment will be void; provided, however, that a party may assign
this Agreement to any of its Affiliates upon prompt written notice to the other
party. Notwithstanding the foregoing, either party may assign any of its rights
and obligations under this Agreement to the surviving corporation with or into
which that party may merge or consolidate, or an entity to which that party
transfers all, or substantially all, of its voting securities or assets;
provided, however, that upon notice of such event the other party shall have the
right to terminate this Agreement without cause on thirty (30) days prior
written notice to the other ▇▇▇▇▇.
(g) Relationship of Parties; Third Party Beneficiaries Nothing in this
Agreement shall constitute or be deemed to constitute a relationship of employer
and employee, agency, joint venture or partnership between the parties hereto or
constitute or be deemed to constitute one party as agent of the other, for any
purpose whatsoever, and except as expressly provided herein, neither party shall
have the authority or power to bind the other, or to contract in the name of or
create a liability against the other, in any way or for any purpose. DealerTrack
will perform all services under this Agreement as an Independent contractor. No
person or entity not a party to this Agreement, including but not limited to
DealerTrack Dealers, will be deemed to be a third party beneficiary of this
Agreement or any provision hereof.
(h) Governing Law; Jurisdiction This Agreement is governed by the laws of
the State of Delaware, exclusive of its choice of law rules. Any lawsuit with
respect to the subject matter of this Agreement may be filed only in the state
court located within the City of Wilmington, Delaware, or the federal courts
located in the United States District of Delaware and the Parties submit to
venue and personal jurisdiction in those courts.
-16-
(i) Background and Exhibits The exhibits identified below, as they may be
modified in accordance with the terms of this Agreement, are incorporated by
reference herein and shall constitute substantive parts of this Agreement
(j) Nondisclosure of Terms Each party agrees for itself, its agents, and
representatives that the terms of this Agreement are confidential, and neither
party shall disclose any of the terms hereof to any third party (except for
disclosure reasonably made to legal representatives and accountants) without the
prior written consent of the other party or as may be required by either party
to comply with applicable U.S. laws or regulations.
(k) Counterparts This Agreement may be executed in one or more
counterparts, each of which shall, for all purposes be deemed to be an original
and all of which shall constitute the same instrument.
(l) Force Majeure To the extent that either party's performance of any of
its obligations pursuant to this, Agreement is prevented, hindered or delayed,
directly or indirectly, by a Force Majeure Event, and such non-performance could
not have been prevented by reasonable precautions, then the nor-performing party
shall be excused from any further performance of those obligations. The
non-performing party shall only be excused for so long as such Force Majeure
Event continues and such party continues to use its best efforts (or cause its
subcontractor to use best efforts) to recommence performance whenever and to
whatever extent possible without delay, including through the use of alternate
sources, work around plans or other means. The party whose performance is
prevented, hindered or delayed by a Force Majeure Event shall immediately notify
the other party by telephone of the occurrence of the Force Majeure Event and
describe the Force Majeure Event in reasonable detail (to be confirmed in
writing within two days of the inception of such delay). If any Force Majeure
Event prevents or restricts DealerTrack's performance of the Service and
DealerTrack does not within three (3) consecutive days recommence provision of
the Service, Lender may, upon notice to DealerTrack, terminate this Agreement.
The occurrence of a Force Majeure Event does not limit or otherwise affect
DealerTrack's obligation to provide either normal recovery procedures or any
other disaster recovery services required pursuant to Lender
Information/Technology Control Policies set forth in this Agreement
(m) Interpretation of Documents In the event of a conflict between this
Agreement and the terms of any Exhibit, the terms of this Agreement shall
prevail.
IN WITNESS WHEREOF, the parties to this Agreement have signed and affixed
their seals to this Agreement effective as of the day and year first written
above.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC. CAPITAL ONE AUTO FINANCE
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------- ------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
-17-
AMENDMENT TO DEALERTRACK LENDER AGREEMENT
This AMENDMENT TO DEALERTRACK LENDER AGREEMENT (this "Amendment") is
made and entered into as of December 28, 2001 (the "Effective Date"), by and
between ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("DealerTrack") and Capital One Auto Finance, Inc.
("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of September 26, 2001 (the "Lender Agreement"); and
WHEREAS, DealerTrack and Lender desire to (i) amend Exhibit B
(Schedule of Fees and Charges) of the Lender Agreement to provide Lender with
most favorable treatment of certain fees and charges under certain
circumstances, (ii) provide Lender with certain other rights as set forth in
Section 3 hereto, (iii) amend Section 9(a) (Term and Termination) to restrict
DealerTrack's right to terminate the Agreement and (iv) amend Section 19(a)
(Insurance) to provide for a lower insured limit for Errors & Omissions
liability insurance, effective as of the date hereof, on the terms and
conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Lender Agreement.
2. Amendment of Exhibit B. The following new paragraph is hereby added
at the end of Exhibit B of the Lender Agreement:
"DealerTrack shall not charge Lender any fee and/or charge for any
products or services provided to Lender under the terms of the Agreement or in
any other agreement entered into by and between the parties with respect to the
provision of products and services by DealerTrack that are higher than the
lowest fee and/or charge that DealerTrack charges any other DealerTrack
Financial Institution for such products or services, except for any discount on
a fee or charge offered to a new DealerTrack Financial Institution for a period
not to exceed six (6) months after the Acceptance Date of such DealerTrack
Financial Institution. In the event that such fee and/or charge is based on a
sliding scale tied to a specified volume amount of a specific type of
transaction processed through the Service, Lender's fee and/or charge shall be
no higher than the lowest fee or charge applicable to any DealerTrack Financial
Institution for Lender's actual volume amount for such specific type of
transaction."
3. Product Placement, Preferences and Audit Information.
(A) The following section is hereby added after Section 21(m) of the
Lender Agreement:
"22. Product Placement. Preferences and Audit Rights. For no
additional consideration and unless otherwise approved by the Board of Directors
of either DealerTrack or its parent company, DealerTrack Holdings, Inc. (the
"Parent Company"):
-1-
(a) Product Placement.
(i) If DealerTrack elects, in its sole discretion, and provided
DealerTrack has received the written permission of Lender, to place on the
DealerTrack Site the name, ▇▇▇▇, logo, advertisement, description of
products and services, promotional and informational content ("Product
Information") of Lender, DealerTrack shall place such Product Information
(x) Prominently (as defined below) and (y) not less Prominently than it
places substantially similar Product Information of any DealerTrack
Financial Institution, or its Affiliate, which is a stockholder of the
Parent Company (a "Stockholder Lender"); and
(ii) Notwithstanding anything to the contrary contained in
Section 22(a)(i), DealerTrack shall place on the DealerTrack Site the
Product Information of each Stockholder Lender not less Prominently than
the Product Information it places substantially similar Product Information
of any other third party (excluding DealerTrack, its subsidiaries, the
Parent Company and any other majority-owned subsidiaries of the Parent
Company).
(iii) For the purpose hereof, "Prominently" means in a readily
noticeable and conspicuous manner.
(iv) The refusal of Lender to grant permission to DealerTrack to
place Product Information of Lender on the DealerTrack Site after receiving
a written request from DealerTrack for such permission shall not result in
a breach by either DealerTrack or Lender of Section 22(a)(i) or 22(a)(ii).
(v) Nothing contained in this Section 22(a) shall be construed to
prevent Captives (as defined below), which may or may not be Stockholder
Lenders, from being granted special treatment by DealerTrack with respect
to placement of Product Information, if requested by an automobile
manufacturer or automobile distributor in connection with the sale of its
automobiles by and at the location of its franchised DealerTrack Dealers.
For purposes of this Agreement, "Captives" means a finance company either
owned or designated by an automobile manufacturer or automobile distributor
to whom such automobile manufacturer or automobile distributor provides
subvention dollars in order for such finance company to provided subvention
financing to such automobile manufacturer's or automobile distributor's
franchised DealerTrack Dealers solely for such automobile manufacturer's or
automobile distributor's vehicles.
(b) No Preference in Credit Application Transmission. DealerTrack
shall not, subject to the right of each DealerTrack Dealer, together with its
Affiliates, or DealerTrack Financial Institution to create and or use one or
more credit application filtering processes in connection with the Service
(which shall only affect credit applications associated with such DealerTrack
Dealer and its Affiliates or such DealerTrack Financial Institution), prefer any
Stockholder Lender as to another Stockholder Lender or any other DealerTrack
Financial Institution with respect to the transmission of any credit
applications by a DealerTrack Dealer in electronic form by means of the Service
to a DealerTrack Financial Institution. Nothing
-2-
contained in this Section 22(b) shall be construed to prevent Captives, which
may or may not be Stockholder Lenders, from being granted special treatment by
DealerTrack with respect to credit applications originated at their affiliated
DealerTrack Dealers, if requested by an automobile manufacturer or automobile
distributor in connection with the sale of its automobiles by and at the
location of its franchised DealerTrack Dealers.
(c) Audit Information. Lender shall be entitled to designate, subject
to the approval of DealerTrack which shall not be unreasonably withheld, an
independent auditor of national standing to audit DealerTrack's records relating
to DealerTrack's compliance with the most favored pricing treatment provisions
of Exhibit B hereto with respect to the fees or charges which were charged to
Lender thereunder no more often than once per calendar year. The sole purpose of
such audit shall be to enable such auditor to report to Lender as to whether
DealerTrack has complied with its obligations under Exhibit B of this Agreement.
Such audit shall not unreasonably interfere with the conduct of DealerTrack's
business, and the independent auditor conducting such audit, prior to the
conduct of such audit, shall agree in writing with DealerTrack to keep
confidential all materials and information (including, without limitation, all
agreements with DealerTrack Dealers and DealerTrack Financial Institutions,
including, without limitation, the other Stockholder Lenders, and the terms
thereof) supplied to them by DealerTrack in connection with such audit. Such
audit shall be at Lender's expense; provided that if such audit demonstrates any
overpayment of the amount due under this Agreement for the period audited of
three percent (3%) or more, then the expense of such audit shall be borne by
DealerTrack. To the extent that the audit reveals a violation of Exhibit B with
respect to the calculation of fees and charges resulting in payments by Lender
greater than those of other DealerTrack Financial Institutions, DealerTrack
shall reimburse Lender for such overpayment within twenty (20) days of receipt
of written notice by Lender of such overpayment."
(B) Section 16(a) of the Lender Agreement is hereby amended by
deleting 16(a)(ii) in its entirety and replacing such subsection with the
following:
"(ii) gross negligence, or willful or wanton behavior of the
indemnifying party, its affiliates, or any of their respective officers,
directors, employees, or agents; or
(iii) or asserted by a third party against the indemnifying party with
respect to the use of any approved Product Information (including, without
limitation, Lender Marks) provided by such party."
4. Amendment of Section 9(a). Section 9(a)of the Lender Agreement is
hereby amended by deleting Section 9(a) in its entirety and replacing such
subsection with the following:
"The term of this Agreement shall begin on the Effective Date, and
shall continue for a period of two (2) years from the Acceptance Date (the
"Initial Term") unless sooner terminated as provided below. Upon expiration of
the Initial Term, unless terminated by either party by notice of termination
given not less than ninety (90) days prior to expiration of the Initial Term,
this Agreement shall automatically renew for successive one (1) year terms
(each, a "Renewal Term"). During any Renewal Term, notice of termination by
either party shall be effective at the end of such Renewal Term if given not
less than one hundred and sixty (60) days
-3-
prior to the expiration of such Renewal Term. Notwithstanding anything contained
in this Section 9(a) to the contrary, DealerTrack shall not have any right
whatsoever to terminate this Agreement upon the expiration of the Initial Term
or any such Renewal Term, as the case may be, except for cause as set forth in
Section 9(b) below, for so long as the Lender, together with its Affiliates (as
such term is defined in the Amended and Restated Stockholders' Agreement of the
Parent Company, dated as of the date hereof, among the Parent Company and the
stockholders listed therein (the "Stockholders' Agreement")), holds either (i)
equity securities of the Parent Company representing at least five (5%) percent
of the voting power thereof (determined on a Fully Diluted Basis (as defined in
the Stockholders' Agreement)), (ii) seventy-five (75%) percent of the capital
stock of the Parent Company held by it as of the Effective Date (as adjusted for
stock splits, stock dividends and the like) or (iii) capital stock whose fair
market value not less than $6,000,000 based on the last offering of securities
by the Parent Company. Notwithstanding anything contained in this Section 9(a)
to the contrary, prior to any renewal of the Agreement hereunder, the parties
agree to negotiate in good faith any amendments to the then current terms and
conditions of the Agreement (other than the most favored pricing provisions set
forth in Exhibit B) that make the then current terms and conditions of the
Agreement impractical in light of changes to DealerTrack's business and provided
further, that DealerTrack is attempting to treat Lender in a substantially
similar manner as other DealerTrack Financial Institutions."
5. Amendment of Section 19(a). Section 19(a) of the Lender Agreement
is hereby amended by deleting Section 19(a) in its entirety and replacing such
subsection with the following:
"Errors & Omissions Liability covering the design, development,
maintenance, operation of the Services, and anything incidental thereto, for a
limit of not less than one million dollars ($1,000,000);"
6. Authority. Each party represents that it has the authority to enter
into this Amendment and its authority is not inhibited by any agreement or legal
proceeding.
7. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts by
facsimile or otherwise, each of which when so executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument.
8. Governing Law. This Amendment shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
applicable to contracts made or performed in such State.
[Remainder of page intentionally left blank]
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by its authorized officer as of the date first
above written.
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇.▇'▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Chief Executive Officer
CAPITAL ONE AUTO FINANCE, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Executive Vice President,
Corporate Development
S-1
SECOND AMENDMENT TO DEALERTRACK LENDER AGREEMENT
This SECOND AMENDMENT TO DEALERTRACK LENDER AGREEMENT (this
"Amendment") is made and entered into as of October 24, 2002, by and between
DealerTrack, Inc., f/n/a ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("DealerTrack") and Capital One
Auto Finance, Inc. ("Lender").
WHEREAS, DealerTrack and Lender are parties to a DealerTrack Lender
Agreement, dated as of September 26, 2001, as amended by that certain Amendment
to DealerTrack Lender Agreement, dated as of December 28, 2001 (the "Lender
Agreement"); and
WHEREAS, DealerTrack and Lender desire to amend the last paragraph of
Exhibit B (Schedule of Fees and Charges) with respect to the most favorable
treatment of certain fees and charges under certain circumstances, effective as
of the date hereof, on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Lender Agreement.
2. Amendment of Exhibit B. Exhibit B of the Lender Agreement is hereby
amended by deleting the last paragraph of Exhibit B in its entirety and
replacing such paragraph with the following:
"DealerTrack shall not charge Lender any fee and/or charge for any
products or services provided to Lender under the terms of the Agreement or in
any other agreement entered into by and between the parties with respect to the
provision of products and services by DealerTrack that are higher than the
lowest fee and/or charge that DealerTrack charges any other DealerTrack
Financial Institution for such products or services, except for any discount on
a fee or charge offered to (i) Captives, whether or not such Captives are
Stockholder Lenders, upon the prior approval of at least seventy-five percent
(75%) of the board of directors of DealerTrack and (ii) a new DealerTrack
Financial Institution (including any Captives) for a period not to exceed six
(6) months after the "Acceptance Date" of such DealerTrack Financial
Institution. In the event that such fee and/or charge is based on a sliding
scale tied to a specified volume amount of a specific type of transaction
processed through the Service, Lender's fee and/or charge shall be no higher
than the lowest fee or charge applicable to any DealerTrack Financial
Institution (other than any Captives whose fees and charges have been approved
by the board of directors of DealerTrack as provided for in clause (i) of the
preceding sentence) for Lender's actual volume amount for such specific type of
transaction."
3. Authority. Each party represents that it has the authority to enter
into this Amendment and its authority is not inhibited by any agreement or legal
proceeding.
4. Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts by
facsimile or otherwise, each of which when so executed and delivered shall be an
original, but all of which
-1-
shall together constitute one and the same instrument.
[Remainder of page intentionally left blank]
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by its authorized officer as of the date first
above written.
DEALERTRACK, INC.
By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Chief Executive Officer
& President
CAPITAL ONE AUTO FINANCE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
THIRD AMENDMENT TO DEALERTRACK LENDER AGREEMENT
This THIRD AMENDMENT TO DEALERTRACK LENDER AGREEMENT (this
"AMENDMENT") is made and entered into, as of June 25, 2004, by and between
DealerTrack, Inc., f/k/a ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. ("DEALERTRACK") and Capital One
Auto Finance, Inc. ("LENDER").
WHEREAS, DealerTrack and Lender are parties to a certain DealerTrack
Lender Agreement, effective as of September 26,2001, as amended by that certain
Amendment to DealerTrack Lender Agreement, dated as of December 28,2001 and that
certain Second Amendment to DealerTrack Lender Agreement, dated as of October
24, 2002 (the "Agreement"); and
WHEREAS, DealerTrack and Lender desire to revise the termination
provisions included in the Agreement as of the date hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Definitions. All capitalized terms used herein shall have the same meanings
set forth in the Agreement, unless otherwise defined in this Amendment.
2. Amendment of Section 9(a) of the Agreement. Section 9(a)of the Agreement is
hereby amended as follows:
(a) by deleting the words "one hundred and" contained in the third
sentence thereof; and
(b) by inserting the following sentence after the third sentence
thereof:
"Notwithstanding anything contained in this Section 9(a) to the
contrary, neither party may terminate this Agreement pursuant to this
Section 9(a) unless, in accordance with the terms of each Addendum
hereto, such party also terminates each Addendum then in effect."
3. Amendment of Section 12(1) of the Agreement. Section 12(1) of the Agreement
is hereby amended by deleting the following text in the second sentence thereof:
"REGARDING THE SERVICE OR THE DEALERTRACK MARKS."
4. Amendment of Section 13(k) of the Agreement. Section 13(k) of the Agreement
is hereby amended by deleting the following text in the second sentence thereof:
"REGARDING THE LENDER MARKS."
5. Amendment of Section 15(a) of the Agreement. Section 15(a) of the Agreement
is hereby amended by inserting the following sentence before the last sentence
thereof:
1
"Notwithstanding anything to the contrary contained herein, to the
extent permitted by applicable law, DealerTrack may use and disclose any
Confidential Information (including, without limitation, Customer
Information) in the aggregate with other DealerTrack Financial
Institutions' similar information; provided, however, that any such use or
disclosure shall not contain any information identifying Lender or any
consumer or that is reasonably traceable to Lender or any consumer."
6. Amendment of Section 15(d) of the Agreement. Section 15(d) of the Agreement
is hereby deleted in its entirety and replaced with the following:
"(d) Return of Confidential Information. Upon termination or expiration of
this Agreement, or upon Disclosing Party's earlier request, Receiving Party
shall promptly destroy all of Disclosing Party's Confidential Information,
any copies or partial copies thereof and material containing Disclosing
Party's Confidential Information (except for Disclosing Party's
Confidential Information that is transmitted by or through the Service
which remains subject to the terms and conditions of this Agreement) and
certify to the Disclosing Party in writing that it has done so; provided,
however, that Receiving Party shall not be required to return or destroy
Confidential Information which has been provided to any governmental agency
having jurisdiction over the Receiving Party. Additionally, Receiving
Party's legal department may retain one copy of the Confidential
Information and any such other material for archival purposes, subject to
the terms and conditions of this Agreement. DealerTrack may also retain
Confidential Information for use in the aggregate as set forth in Section
15(a) above. The obligations under this Agreement with respect to
Confidential Information shall survive any termination or expiration of
this Agreement."
7. Amendment of Section 16(a) of the Agreement. Section 16(a) of the Agreement
is hereby amended by deleting clause (iii) thereof in its entirety and replacing
it with the following:
"(iii) Notwithstanding anything to the contrary contained herein, to the
extent permitted by applicable law, DealerTrack may use and disclose any
Customer Information in the aggregate with other DealerTrack Financial
Institutions' similar information; provided, however, that any such use shall
not contain any information identifying Lender or any consumer or that is
reasonably traceable to Lender or any consumer."
8. Amendment of Section 17(a) of the Agreement. Section 17(a) of the Agreement
is hereby amended by deleting the text "Notwithstanding the provisions of
Section 16" in the first sentence thereof and replacing it with the following
text: "Notwithstanding the indemnification obligations set forth in Section 16"
9. Amendment of Section 21(h) of the Agreement. Section 21(h) of the Agreement
is hereby amended by deleting the text "the laws of the State of Delaware" in
the first sentence and replacing it with: "the laws of the State of New York"
and by deleting the
2
second sentence thereof in its entirety and replacing it with the following
text: "Any lawsuit with respect to this Agreement may be filed in the state or
Federal courts in either Wilmington, Delaware or Suffolk County, New York and
the Parties submit to venue and personal jurisdiction of those courts."
10. Addition of New Section 23 to the Agreement. The Agreement is hereby amended
by adding a new Section 23 as follows:
23. Information Protection Program
(a) Generally
(i) DealerTrack agrees to develop, implement and maintain
policies, standards and procedures, at DealerTrack's own
expense that DealerTrack reasonably believes to be
sufficient to meet the levels of security set by legislation
and regulations applicable to the Service, in order to
maintain the confidentiality, security and integrity of
Lender's Confidential Information and computing environment.
DealerTrack further agrees to develop, implement and
maintain, at DealerTrack's own expense, a system or
methodology to audit for compliance with the above policies,
standards and procedures.
(ii) Lender and its auditors (internal and external) shall have
the right to conduct at Lender's expense upon reasonable
notice, and, unless material deficiencies are found, no more
often than twice per calendar year an audit of the Service
and operations of the DealerTrack Site, including, but not
limited to, DealerTrack's Information Technology
infrastructure security, during normal business hours of
DealerTrack, during the term of this Agreement. DealerTrack
shall cooperate in good faith with any such audit; provided,
however, that Lender and its designees shall have no right
to access, examine or review any confidential information or
Data of any third party. The sole purposes of such audit
shall be to enable Lender (i) to determine whether
DealerTrack has complied with its obligations under this
Section 23; or (ii) to meet required regulatory
requirements. Such audit shall not unreasonably interfere
with the conduct of DealerTrack's business, and the
personnel or external auditors conducting such audit, prior
to the conduct of such audit, shall (a) agree in writing
with DealerTrack to treat as Confidential Information of
DealerTrack all materials and information supplied to them
by DealerTrack in connection with such audit, other than
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any Confidential Information of Lender and (b) comply with
all of DealerTrack's reasonable security requirements.
(b) DealerTrack's Computing Environment.
(i) DealerTrack shall use commercially reasonable efforts to
develop, implement and maintain procedures, appropriate to
the type of business being conducted by DealerTrack, with
respect to physical security for information security,
including, but not limited to: (i) physical perimeter and
access security; (ii) Fire detection and suppression system
protecting computing equipment; (iii) backup power supply
for critical computing equipment that supports Lender
information processing; and (iv) Filtered surge-resistant
power supply to all workstations processing Lender
information.
(ii) DealerTrack shall use commercially reasonable efforts to
develop, implement and maintain procedures, appropriate to
the type of business being conducted by DealerTrack, with
respect to physical security for systems and network
security for information security, including, but not
limited to: (i) Installing firewalls at all perimeter
connections; (ii) Installing intrusion detection software;
(iii) Implementing all critical security-related software
patches relating to products utilized in the Service; (iv)
Configuring routers with CERT-recommended security Access
Control List (ACL) statements; (v) Routinely monitoring the
firewall, intrusion detection, system and router logs for
anomalies; and (vi) Implementing automated, real-time
alerting by firewalls and IDS systems for suspected
high-risk Security Events (Security Events are defined as
"events that exhibit known attack signatures").
(iii) DealerTrack shall use commercially reasonable efforts to
develop, implement and maintain procedures, appropriate to
the type of business being conducted by DealerTrack, with
respect to servers and workstations security for information
security, including, but not limited to: (i) Hardening, to
include disabling unused services; (ii) Configuring to
resist installation of malicious code including viruses,
sniffers, remote host-domination programs, and unauthorized
process monitors; (iii) Configuring to resist unauthorized
elevation of user privileges: (iv) Installing and
maintaining anti-virus detection software; and (v) Routinely
monitoring system and application logs for anomalies.
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(c) Customer Information in Transmission or on Portable Media. All
Customer Information transmitted via the Service will be
encrypted during transmission in at least a 128 bit SSL
encryption protocol or such higher standard that DealerTrack
deems appropriate for the type of business being conducted by
DealerTrack. All Customer Information transmitted outside the
Service will be encrypted during transmission or when copied to
portable media, using encryption methodology approved in advance
by Lender's Information Risk Management, which approval shall not
be unreasonably withheld. To the extent that Lender requests a
specific method of encryption not then maintained by DealerTrack,
then Lender shall, at its own cost and expense, provide such
method to DealerTrack.
(d) Incident Response and Management. The Lender Information Risk
Management Computer Incident Response Team ("CIRT") will be
promptly notified by DealerTrack or its security designee when
either DealerTrack or its security designee knows that a Security
Event related to Lender's Customer Information at DealerTrack's
site has occurred. DealerTrack will provide Lender with access,
at DealerTrack's facility, to the hard, unaltered data and logs
of the activity within seventy-two (72) hours of request from
CIRT, subject to Lender's obligations with respect to
confidentiality and reasonableness set forth in Section 23(a)(ii)
above. Notwithstanding anything else to the contrary, this access
to hard, unaltered data and logs shall not constitute or be
deemed one of the two permitted audits set forth in Section
23(a)(ii) above.
(e) Subcontractors; Ongoing Compliance.
(i) DealerTrack will maintain the same or greater (in
DealerTrack's reasonable belief) level of security that was
demonstrated in order to establish initial compliance with
the agreements in this document.
(ii) Upon Lender's request, DealerTrack will apprise Lender of
any subcontractor engaged for the purpose of processing
Confidential Information on behalf of DealerTrack. Any
subcontractor engaged by DealerTrack for the purpose of
processing Confidential Information or sensitive document
destruction will be obligated to maintain the
confidentiality of Confidential Information, in accordance
with Section 15 of this Agreement and DealerTrack shall be
responsible for any breach thereof by any such
subcontractor.
(f) Materiality.
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(i) If DealerTrack breaches any duty set forth in this Section
23, Lender shall provide DealerTrack with written notice of
the breach. Breach of this Section 23 is a material breach
of this Agreement.
11. Authority. Each of the parties represents and warrants to the other party as
follows: (a) that it has all necessary power and authority to enter into this
Amendment; and (b) this Amendment has been duly authorized, executed and
delivered by, and constitutes the valid and binding obligation of each party.
12. Counterparts. This Amendment may be executed in any number of counterparts
and by the different parties hereto on separate counterparts by facsimile or
otherwise, each of which when so executed and delivered shall be an original,
but all of which shall together constitute one and the same instrument.
13. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the internal laws of the State of New York
applicable to contracts made or performed in such State.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by its authorized officer as of the date first
above written.
DEALERTRACK, INC.
By:
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Name:
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Title:
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CAPITAL ONE AUTO FINANCE, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
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